If a person is intrusted to do diligence against a debtor, betwixt and a certain day, altho' the debtor die before the day, yet if he know, and suffer another creditor to comprise, and do no diligence within year and day thereafter, he is liable for the whole debt assigned, for which he should have done diligence.
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In a pursuit at the instance of the said Minister against Wilson, for payment of a sum of money contained in a bond granted by David Balfour of Nether-samford, to which he was assigned, upon his obligement to do exact diligence, by leading a comprising against the debtor's land before Martinmas 1671; in respect that the debtor died before any diligence was done, and that, after his death, his lands were adjudged at the instance of the Lady Samford Nairn, whereby the pursuers were altogether prejudged of their debt, after proponing of some allegeances, and referring to the pursuer's oath, which were denied; and the defender being desired to give in a condescendence of damage, viz. the whole sum contained in the bond and assignation; it was alleged for the defender Wilson, That he could not be liable for any damage for not doing diligence before Martinmas, after the date of his obligement; because the debtor died five months before that time, and he was only obliged at any time before Martinmas to lead a comprising; neither could he be liable for not doing diligence after Martinmas and the debtor's death; because any adjudication or comprising would have been ineffectual, seeing the Lady Samford Nairn did, immediately after expiring of year and day, adjudge the said lands belonging to the common debtor, upon a disposition and obligement to infeft, granted by the debtor before any diligence or inhibition was served against him; and so any comprising which could have been led of these same lands, would have been to no purpose. It was replied, that the defender ought to be liable, notwithstanding, to the whole damage; because he being a procurator before the consistory of St Andrews, and accepting of the trust and employment as an intelligent man, not only he was so negligent that he never did any diligence before the debtor died, who subscribed his trust by the space of six months, and was known to him to be a sickly dying man for a long time, but likeways did expressly know of the Lady Samford's disposition, which was but personal; and notwithstanding did forbear to comprise, whereby getting the first real right, he would have been preferred. And albeit he was not bound to do diligence, but at any time before Martinmas, yet year and day being expired, after the common debtor's distress, and doing no diligence, but suffering the Lady to adjudge, whereas, if he had comprised before her, he would have been preferred, or if he had done the like diligence within year and day, he would have come in pari passu; but having altogether neglected to do any diligence, he ought to be liable.——The Lords having considered the case, that it was not only of a trust voluntarily undertaken, but given to the defender as a man versed in law, of purpose that he might do diligence;—found, that albeit the common debtor died before Martinmas, yet if dolose he had omitted, that he ought to be liable, which they ordered the pursuer to condescend upon and prove; and albeit that should not be proven, they found, that after year and day, the doing no diligence by comprising, whereby he might either have been preferred, or come in pari passu with the Lady Samford Nairn, who had adjudged, that he ought to be liable for the whole damage; albeit it was argued by some of the Lords, That the Lady's adjudication being upon a special obligement to dispone the whole lands irredeemable, she would have been preferred, albeit they had been equal in diligence; or if Wilson had adjudged only after or within year and day, he could not have craved the benefit of the act of Parliament to come in pari passu, which is only granted where the case is betwixt comprisers or adjudgers for personal debts.
Fol. Dic. v. 1. p. 243. Gosford, MS. No 694. p. 414.
