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In the case of Pearson of Kippenross against one Wright, the Lords found an executor-creditor liable to do diligence for recovering what he had confirmed, yea as exact as other executors, who are bound the length of a registrate horning. And this the Lords resolved to make a precedent for their constant decision in the like cases hereafter.
Fol. Dic. v. 1. p. 240. Fountainhall, v. 1. p. 41.*** Stair reports the same case:
James Pearson of Kippenross, as assignee by James Buchanan to the sum of L. 300 due by James Sinclair, obtained decreet against James Wright as executor to Sinclair. Wright suspends, on this reason, that he is but executor-creditor, and therefore is only obliged to assign, but to do no diligence. It was answered for the pursuer, That though executors-creditors have not been holden to do the most exact diligence for recovering the defunct's debts, yet, in this testament, there being confirmed the defunct's moveable goods, which are perishable, and which are presumed to have been possessed by the executor, so that, without necessity of diligence, he must be liable for the superplus of the moveables more than pays himself;
Which the Lords found relevant, unless the executor condescend and instruct how he was put from the possession of the moveables; for, if testaments do not instruct against executors confirming, that the goods in inventory were existent, upon which they make faith, the interest of creditors, wives, and bairns will be exceedingly prejudged, so that the executor must be obliged to count for the inventory, unless where he instructs he was excluded.
