Cecil Thomson, and John Haliburton her Spouse, v. Ogilvie, and John Watson her Spouse
Date: 14 December 1675 Case No. No 31.
An executor obtaining payment, but doing no diligence, was found liable, unless he would prove the debtor was insolvent at the time of the decree.
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The said Cecil, as executrix confirmed to Henry Thomson her brother, did pursue the said Grizel Ogilvie, as executrix to David Thomson her husband, for payment of the sum of L. 5000 left in legacy to the said Henry. It was alleged, That the defender, being only pursued as executrix, and having only done diligence against the debtors of the said Thomson who left the legacy, all she was bound in law to do, was to assign, or to do diligence, that the pursuers might recover payment. It was replied, That any diligence done against the debtors being only by obtaining decreet, and no execution used for many years after the decreet, the debtors were now insolvent, so that the pursuer was not obliged to take an assignation; but the defender is liable for suffering the debtors to become insolvent. It was duplied, That the executrix obtaining a decreet against debtors, constituting the debt against them, who, at that time, were repute to be solvent, the executrix was not obliged farther to execute the same; and they ought to be presumed to be now in no worse condition.—The Lords did find the executrix liable, notwithstanding she had obtained decreet, for not executing the same, unless she could prove, that, the time of the decreet, the debtors were bankrupts, and had no estate that could be recovered.
Fol. Dic. v. 1. p. 240. Gosford, MS. No 817. p. 515.
