Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Mungo Malloch v. James Lindsay of Kavill
Date: 28 January 1698
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I reported Mungo Malloch, baxter in the Canongate, against James Lindsay of Kavill. Malloch, as executor-creditor to Margaret Litster, pursues Kavill for payment of 600 merks contained in his bond. His defence was,—Discharged by the said Margaret in her latter will and testament. Answered,— That was only donatio mortis causa, which cannot prejudge her creditors; likeas, he is nominated executor, and burdened with her debts; and so, founding on the testament, quoad legatum liberationis, he can never repudiate it quoad the obligement to pay her debts. Replied,—If the discharge was merely gratuitous, without antecedent onerous causes, Malloch might quarrel the same on the Act of Parliament 1621, Kavill being her uncle; but, in fortification of the discharge, and to adminiculate and support, he offers to prove he alimented her by the space of three or four years before her decease, and was at all the expense of her funerals; and the Lords, on the 26th of January 1669, Chisholm against The Lady Brae, allowed a party to condescend on the onerous cause of their right, and prove the same. Duplied,—As to the privileged debt of her medicaments and funerals they did not contend; but he could never bring in an illiquid ground of aliment to compense his clear instructed debt; and cited the decision, 18th January 1676, Crockat against Ramsay. Triplied,—Quod statim potest liquidari habetur fro jam liquido; and, to support his discharge, a term may be allowed him to prove the aliment; which being done, he ought at least to come in pari passu, as all executor-creditors confirming within six months, by the act of sederunt, do.
The Lords repelled the ground of compensation as illiquid, and preferred Malloch's debt next to the funeral charges.
