Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Miller
v.
Nisbet and Gavin Lindsay

Date: 31 January 1632

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One Miller, having obtained sentence against Nisbet, his father's relict, as executrix to him, to pay a sum owing to him by his father's bond; and thereafter arresting, in Gavin Lindsay's hand, a sum addebted to his father, and pursuing to make it forthcoming;—the defender alleging, that, before the arrestment, the relict, executrix foresaid, had recovered sentence against him to pay to her the sum; which decreet she also, before the arrestment, assigned to a creditor of her husband's, and which creditor also intimated the assignation to him before the arrestment, and to which assignee he has paid the debt acclaimed from him;—this allegeance was sustained; albeit the payment was made, and the discharge reported, after the arrestment, in respect oi the other titles before the arrestment, which were a warrant to the payment thereof: And the Lords found it not needful to the party to allege that he paid the whole debt owing by him to the said assignee, to whom the pursuer alleged that there was not so much owing as was owing by him to the defunct; and therefore that the superplus should be made forthcoming to him for his debt. Which was found not necessary; for it was found that the assignee might discharge the debt for nothing, if he pleased, and that the debtor was thereby liberated and that the pursuer, or any other of the defunct's creditors, had action safe to them against the executrix and her cautioner found in the testament thereanent, to pursue them therefore; but that, as the executrix's discharge did liberate the debtor after sentence, and that she remained thereafter accountable, so her assignee's discharge did the same, without necessity to allege total payment; seeing the whole was totally assigned, as said is.

Vid. 8th March 1632, L. Luss.

Page 617.