Found in conformity with Scougal against Horsburgh, No 50. p. 3863.
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One Duff, as assignee by one Smith, to whom a sum was obliged to be paid by his contract of marriage, by one Warrand his father-in-law, pursues Alves, relict and executrix of the said Warrand, for payment thereof; and she alleging, That all the gear of the testament was exhausted by lawful sentences obtained by creditors, whereof she had made payment before this pursuit, the Lords repelled this allegeance, because this payment was not allowed in prejudice of this pursuer, whose debt the defender could not misken, seeing it was contained in the defunct's testament, and given up as a debt by himself, and which she had confirmed herself, and was also known to her, she being a contractor with her umquhile husband in the cedent's contract of marriage; for the Lords found, that she ought to have suspended these creditors' decreets, and summoned this creditor thereto, that he might have been heard to have claimed his part of the defunct's goods pro rata with the rest of the creditors; and albeit she answered, That though she had suspended, yet the creditors who had obtained sentence would have been preferred to this pursuer who had done no diligence, yet this was not respected; for the Lords found, that she could not pay other creditors, thereby to frustrate this party. See Citation, No 24. p. 2188.
Act. Mowat.Alt. Gibson.Clerk, Scot.
Fol. Dic. v. 1. p. 275. Durie, p. 577.*** Spottiswood reports the same case:
It is the custom before the Commissaries, when the creditors of a defunct get a decreet against the executor, that if there be any other creditors to whom the defunct has given himself up in testament to be owing any debt, they make that creditor, obtainer of the decreet against the executor, to find caution to refund, to the other creditors testamentars, a part of that which he recovers from the executor, according to the proportion of their debt, whenever they shall recover sentence against the executor. Conform hereunto the Lords decided betwixt Duff and Alves; for Duff having pursued Alves as executor, the defender alleged, The testament was exhausted by lawful sentences obtained against her before the intenting of the pursuer's cause, conform whereunto she had made payment. Answered, The defender, being a creditor testamentar, could not but know she ought not to have made payment to any before the pursuer had been called thereto. Replied, She behoved to pay them that did most diligence, and she was not bound to know any other.—— The Lords repelled the exception in respect of the reply.
Spottiswood, (Executors) p. 121.*** This case is also reported by Auchinleck:
Executors being pursued for a debt contained in the defunct's testament given up by his own mouth, they allege the whole goods and gear contained in the testament were exhausted by lawful sentences, deduced upon lawful probation, before the intenting of this action. To which it was replied, That the excipients alleged no decreets of exoneration wherein the pursuer should have been called, seeing such creditors as the defenders could not have been miskenned, seeing the debt is given up in the defunct's testament; in respect whereof the excipient was in pessima fide to have made payment to other creditors that used diligence before the pursuer; but to have suspended, and to have got caution to make the same furthcoming when this debt should be craved.——The Lords repelled the exception in respect of the reply.
