Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. VII.
Effect Relative to Executors and Executors-creditors.
Thomas Crawford v. Earl of Murray
Date: 8 February 1662 Case No. No 63.
Compensation against the executor, is not competent to a debtor of the defunct, taking assignation to one of the defunct's debts after his death; but he will, in competition with other creditors, be in the same situation with his cedent, as of no such assignation had been made
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Thomas Crawford, as executor-creditor, confirmed to umquhile Robert Inglis, as assignee by his relict, for satisfaction of her contract of marriage, pursues the Earl of Murray for payment of the sums confirmed, addebted by him to the said umquhile Robert.—The defender alleged compensation, because he had assignation to a debt due by the said umquhile Robert, which, as it would have been relevant against Robert himself, so must it be against his executor.—The pursuer replied; 1st, non relevat, unless the assignation had been intimate before the confirmation; but an executor-creditor having done diligence by confirmation, it is not in the power of any of the defunct's debtors, by taking assignation from any of his creditors, to prefer that creditor to any other creditor, which is nowise legitimus modus preferendi; but the creditors must be preferred only according to their diligence; 2dly, this pursuit being for implement of the relict's contract of marriage, and pursued to their behoof, hath, by our law and custom, preference to all other personal creditors, though having done more diligence.
The Lords found either of these two replys relevant to elide the defence, albeit the assignation was before any pursuit, moved upon the pursuer's confirmation.
