Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Thomas, Janet, and Margaret Kers,
v.
Agnes Ker

Date: 17 June 1669

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There being a pursuit raised before the commissaries, at the instance of the said Thomas, Janet, and Margaret Kers, against the said Agnes, as executrix to Margaret Ker, for payment of certain legacies left to the pursuers; whereof advocation was raised upon iniquity, in so far, that the commissaries had repelled a relevant defence, viz. That the executor had pursued an exhibition, and recovered the writs for instructing the defunct's debts, and thereupon had pursued and recovered sentence against the debtors. Which defence was repelled, in respect of this reply, That execution had not been used upon the decreets timeously.

The Lords found, That the reply could not elide the defence; in respect that the decreets were but recovered six or seven weeks before the pursuit before the commissaries; which they found to be so short a time, that it could not make the executor liable for the whole debts and legacies;—that she was only obliged to assign to the decreets; unless the pursuer could allege that the debtors, during that short time, had put away their estates, or were in a worse condition.

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