Subject_1 CREDITORS OF A DEFUNCT. Subject_2 SECT. I.
Decisions upon Act 24th, Parliament 1661.
Lord Ballenden v. William Murray
1685.
March. Case No. No 5.
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In a competition between the creditors of a defunct and the creditors of an apparent heir, the Lords found, That the defunct's creditors ought to do exact and complete diligence against his estate within three years after his death, unless they could make appear, that their diligence was retarded without any fault of theirs, by opposition from the heir or other creditors, or the surcease of justice, or the like; and preferred a disposition granted by the heir to one of his creditors, even within three years after the defunct's decease; albeit the creditors of the defunct had obtained a decreet cognitionis causa within the three years, the decreet of adjudication being after. In this process it was also found, That a disposition granted by the heir to the defunct's creditors, within a year after the defunct's decease, was not quarrellable, seeing the clause of the act of Parliament is conceived in favours of the defunct's creditors; nor yet that such a disposition by the heir to one of his own creditors, is quarrellable by another of his creditors.
Fol. Dic. v. 1. p. 206. Harcarse, (Prescription.) No 773. p. 219.
*** See The case of Ker against Scot, voce Arrestment, No 22. p. 690.; and voce Competent, No 34. p. 2715., in which the principle of the above decision was recognized.
