An executor found not to have power to prefer one creditor to another.
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James Hay having pursued Robert Malloch, as executor to David Trench, for payment of a debt of David's, he proponed a defence upon a decreet of exoneration which being sustained with a reservation contra producenda, and being now to be advised, it was objected by the pursuer, That he was not called to the decreet of exoneration, and that several articles in it are paid, after his citation.—It was answered, That the executor having paid, might propone upon the creditor's diligence to whom he paid; ita est, the said creditor used the first citation, before this pursuer, and so was preferable.
The Lords found that the executor ought to have convened both creditors, and that they would have come in pari passu, albeit the citation of the one was before the other.
