James Johnston Merchant in Edinburgh, v. The Lady Kincaide
Date: 11 November 1664 Case No. No 38.
An executor cannot safely pay a debt unless upon decree, even though the debt is instructed by writ.
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James Jonnston pursues the Lady Kincaide, as executrix to her husband, who alleged absolvitor, because the testament was exhausted, and she had obtained a decreet of exoneration, which being standing unreduced, she behoved to be assoilzied, seeing there was no reduction thereof raised; 2dly, Albeit the said exoneration were quarrellable hoc ordine, yet it appears thereby, that the testament was exhausted.—The pursuer answered, That the first defence on the exoneration non relevat, unless the pursuer had been cited to the giving thereof; it operates nothing against him, nor needs he reduce it; 2dly, The second member of the defence of exhausting the testament, mentioned in the exoneration, non relevat, unless it were alleged exhausted by lawful sentences, before intenting of the pursuer's cause.—The defender answered, That it was relevant to allege that payment was made of lawful debts of the defunct's, instructed by writ, before intenting of the pursuer's cause; for, seeing the debt was clear, the executor ought not to multiply expenses, by defending against the same, unless it were alleged there were collusion to prefer the creditors paid.
The Lords repelled both members of the defence, and found that the executrix might not, without a sentence, prefer any creditor; especially, seeing it was not a debt given up in testament by the defunct, neither was it alleged, that the pursuer had long neglected to pursue.
