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An executor may not take an assignation to the defunct's debts, and make assignation thereof to another person, to the effect the assignee may pursue the heir; for the debt being confounded in the person of the executor, who should have paid the same, he might not assign the same to another.
Fol. Dic. v. 1. p. 195. Auchinleck, MS. p. 75.*** Durie reports the same case:
A woman being made assignee by her own son Patrick Dalgarno, to certain debts addebted by umquhile Forbes of Byth, her own son also by another marriage, to divers his creditors, which creditors had made the said Patrick Dalgarno her cedent, assignee thereto; and she pursuing registration of these bonds against the heir of the said umquhile Forbes of Byth debtor thereof, wherein the defender compearing, this defence was found relevant by the Lords, to stop the registration against the heir of the defunct, at the instance of this assignee constitute by the son, who was made assignee by the creditors, because it was offered to be proven, that the assignee Dalgarno was executor decerned to the defunct debtor; which defunct's testament being confirmed, the free gear thereof amounted to greater sums than would satisfy the foresaid debts, whereto he was assigned by the creditors; and he being executor, and the testament containing more free gear than would satisfy the debts acclaimed, and being confirmed, and he decerned executor before the acquiring of the assignation from the creditors; the said assignation made by them to him, must of necessity be converted for the weil of the defunct's heir, whom in law the executor is obliged to relieve of the defunct's debt, so far as the free gear of the testament extends to; and no other assignation can be made by him to any other assignee, which might prejudge the heir of that relief, which the pursuer's cedent, being executor, was obliged to give him of the defunct's debt, by the defunct's moveables. This allegeance was found relevant against this pursuer, albeit she answered, that she was a singular successor, and that her cedent was answerable, and had found caution in the testament, and the defender might convene him for any thing wherein he was obliged in law, for which this pursuer could not be liable; for he might allege, that the free gear was otherways exhausted, or that after diligence, the gear of the testament was not recoverable, which she could not know, and was not competent to her to allege; notwithstanding whereof the allegeance was found relevant to meet this assignee, as it would have met the executor, who was cedent, and the first assignee constitute as said is.
Act. Baird.Alt. Lermonth.Clerk, Gibson.
Durie, p. 508.
