Exceptions, Whether Proponable in Cursu Diligentia.
Alexander Shed v. Robert Gordon and David Kill
Date: 24 July 1662 Case No. No 86.
One personal creditor was found to have no right to propone defence against the constitution of the debt of another creditor.
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Alexander Shed pursues Robert Gordon pupil, as lawfully charged to enter heir to his father, to pay a debt of his father's. Compears David Kill, the pupil's uncle, who was tutor nominate to him, but refused to accept, and therefore shunned to propone any defence in the pupil's own name, least it should be an acceptance, or gestio; and therefore produced a bond of the defunct's and as creditor alleged, that he would not suffer his debtor's estate to be affected in his prejudice, and offered him to prove, that the debt pursued on was satisfied. The question was, Whether he had interest as creditor to propone this defence.
The Lords having considered the case amongst themselves, found that where creditors in this manner compeared, it is not competent to allow their defence, because it may delay the other creditors pursuing, so that a third creditor may be preferred in diligence; and therefore they repelled the defence hoc loco, but declared that it should be receivable against the pursuer, whenever he should pursue for affecting any of the defunct's means or estate, in the same case as now.
