If there be a Co-executor. - If the Executor die before obtaining Sentence. - Every creditor may take decree, and the defence of exhaustion will be reserved contra executionem.
Collison v. The Laird of Drum
Date: 21 November 1671 Case No. No 79.
Found in conformity with Reid against Telfer, No 76. p. 3882.
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Collison, as executor quoad non executa to Alexander Menzies, to whom the Laird of Drum was debtor in the sum of 4000 merks by bond, one of the executors of Alexander Menzies, did pursue Drum for payment thereof. It was alleged for Drum, That the pursuer had no title as executor quoad non executa to Alexander Menzies, in so far as William Menzies having recovered sentence as executor to Alexander, who was creditor to the Laird of Drum, the debt was fully established in the executor's person, and there could be no place for an executor quoad no nexecuta; especially in this case, where the executor being denounced to the horn, the gift of his escheat was taken to the Laird of Drum's behoof. It was replied, That nothing could fall under the escheat of William the executor, who had recovered sentence, but the rebel's own moveables, and ought not to prejudge a lawful creditor of the said Alexander's, to whom the bond was granted, who ought to be satisfied before any who were creditors to the executor, or donatar to his escheat. The Lords did find that the executor quoad non executa had no title, there being a sentence recovered at the instance of the executor dative; but when Collison should pursue as a creditor to Alexander Menzies, if that he ought to be preferred to the said William's creditors, who was his executor, or to the donatar of the executor's escheat, they reserved to themselves to determine that case.
Fol. Dic. v. 1. p. 277. Gosford, MS. No 397. p. 199.
