Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. VII.
Effect Relative to Executors and Executors-creditors.
Children of Mouswell v. Laurie of Maxwelton
Date: 14 Febrbuary 1662 Case No. No 64.
Found as above.
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The children of the Laird Mouswell, as executors to their father, pursue Laurie of Maxwelton for a sum due by him to the defunct, who alleged compensation, upon a debt due by the defunct, assigned to the defender by the defunct's creditor, after the defunct's death, and intimated before any citation or diligence at the instance of any other creditor.—The pursuer replied, That the debt compensed on cannot take away this debt pursued for solidum; because the defender, as assignee, can be in no better case than his cedent; and if he were now pursuing, he would not be preferred for his whole sum, but only in so far as the testament is not yet exhausted, or other prior diligence done; for an executor having but an office, can prefer no creditor, but according to his diligence; much less can any of the defunct's debtors, by taking assignation from any of the defunct's creditors, prefer that creditor whose intimation is no legal diligence.
The Lords found, That the defender could not be in better case than the cedent, and could have only compensation in so far as the inventory was not exhausted, or prior diligence used: They found also, That a decreet against a defender for making arrested sums furthcoming, at the instance of any of the defunct's creditors, was null, because the executor-creditor was not called thereto, albeit decreet was obtained at the instance of that creditor, against another executor in a former process. See Process.
Fol. Dic. v. 1. p. 162. Stair, v. 1. p. 100.*** Gilmour reports the same case:
The executors of —— Douglas of Mouswell pursued Laurie of Maxwelton for payment of a debt; against which it was alleged, That the defender should have compensation, because the defunct was resting him as much, by virtue of an assignation made to him of certain bonds owing to Alexander Douglas writer, and others, his cedents.—It was answered, That the assignation being recovered after the defunct's death, it could not operate a total compensation, in prejudice of the rest of the creditors, to whom the executor is accountable; but all it could do, is to put the excipient in the condition of the cedent; that is, to come in pro rata with the rest of the creditors, to the exhausting the inventory.—It was replied, That the defender had made a lawful assignation or bargain with the cedent, before the rest of the creditors had done any diligence; by which he might as lawfully compense, as if he had acquired the assignation in the defunct's life.—It was duplied, That if it were lawful for a debtor to take an assignation, after this manner, after his creditor's death, then any debtor may defraud the most of the creditors by collusion with some, such as he pleased, and agreeing in what terms he thought fit.
The Lords refused compensation, and ordained Maxwelton, by his assignation, to be only in the condition of the cedent, if he had not assigned.
Thereafter a bill being given in, to be heard in præsentia, which was granted; and when it was debated, it was alleged for the executors, That Maxwelton and his cedents could never be heard to make use of the assignation to be preferred to the rest of the creditors; because long before the granting thereof, the executors had convened both the cedent and assignee for accepting the inventory amongst them pro rata; after which citation, none of the parties called could prejudge others pendente lite.
