Challenge on the Head of Interdiction, how Proponable.
Sempill v. M'Nish and Dobie
Date: 17 March 1630 Case No. No 75.
The Lords refused to receive interdiction by way of exception or reply, but allowed the proponer to reduce.
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One M'Nish, son to umquhile Robert M'Nish, and Agnes Dobie his relict, executors confirmed to the said umquhile Robert, having obtained decreet against John Sempill, for a sum owing by him to the defunct; and he suspending upon payment made to M'Nish, one of the executors, and producing his acquittance thereon; and the relict, who was co-executor, and had obtained the sentence with the other, alleging, that that discharge would only liberate the suspender of the one half of the sum, and that the other half was yet resting to her, seeing the one executor could not discharge but his own part; and the suspender alleging, That the acquittance, albeit granted only by one of the two executors, yet ought to liberate him of the whole debt, seeing he had paid, and might pay the whole debt to any one of them, and he needed not to be troubled in seeking them both, and to pay a part to ilk one of them, but they ought to compt amongst themselves anent their receipts, and the executors and the debtors ought not to be troubled with any thing, which was betwixt them; for ilk one of them having found caution in the testament, thereby the debtors ought to be found in tuto, and that they might lawfully pay the whole to any of them. The Lords found, That seeing two were confirmed executors, that payment might be made to the one only, of the equal half of this debt, and would not sustain the discharge, given by one of the two executors, for the whole sum, but only to liberate of the half; and the rather this was found, seeing the decreet for the debt was recovered at both their instances, and decerned payment to be made to them, not bearing conjunctly and severally. And it being further alleged, That the discharge should not liberate for that executor's own half, who gave the discharge, seeing he was interdicted for just causes, and which interdiction, with the publication thereof, was instantly verified. This was not received hoc loco by way of exception and suspension, but reserved by way of redaction prout de jure. See Solidum et Pro Rata.
Act. Mowat.Alt. Lawtie.Clerk, Scot.
Fol. Dic. v. 1. p. 175. Durie, p. 507.*** This case is also reported by Spottiswood:
John Semple being addebted to Robert M'Nish in L. 200, Agnes Dobie his relict, and John M'Nish his son being co-executors to him, obtained a decreet of registration against John Semple; whereupon the relict having charged, he suspended, because John M'Nish, one of the executors had given a discharge of the said sum to the suspender. Answered, Relevant for his own half, which he might discharge only, and not for the other executor's part. The Lords found, That there being more executors, a discharge granted to a debtor by one of them, will not liberate him at the other executor's hands for their parts. See Solidum et Pro Rata.
Spottiswood, (Executors.) p. 121.*** Auchinleck reports the same case:
There being two executors confirmed, one of them intromits with 8000 merks addebted to the defunct by one of his debtors, and gives to the debtor a discharge of the whole sum. The other executor charges for the whole. The debtor defends him by the discharge granted by the other executor. The Lords found the other executor could discharge for no more but his own part and half. See Solidum et Pro Rata.
