Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
William Cockburn of Cauldra v. Adam Gray
Date: 14 December 1711
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Adam Gray, feuar in Dunse, being debtor to William Nisbet, flesher there, in £4.57, by bond; Nisbet, in his testament, nominates William Cockburn of Cauldra, his executor, and, amongst other legacies, he leaves and bequeaths the said L.457 bond to William Gray, son to the said Adam, and assigns him specially to it. Cauldra confirms the testament, and charges Adam the father, with horning, to pay to him the sum of the bond; who gives in a complaint to the Lords, That the horning and charge was most unwarrantable; for, in grcemio of the same testament making you executor, is my legacy ingrossed; so you can never misken it, and was in pesstma jide to seek it up, when, at the same moment, I could force you to give it back again, namfrustra petis quod mox es restitutions. If it had been in a separate codicil, you might pretend ignoranee; but being incorporated with your own right, it makes you inexcusable. And, as to general legacies, though executors may uplift them, and the legatars are to get them ab ejus manu; but where it is special of an individual subject, the property and dominion is directly stated in the legatee, that he can rei vindicatione recover it. And, as he has the incommodum, if the subject perish, or the debtor turn insolvent, he has no warrandice against the executor to make it up, but it perishes to him: so he ought to have the benefit of enjoying it, free of all defalcation or abatement, except in the case where the inventory is exhausted by debts. And it was both illegal and unjustifiable in him to charge for the debt, when he knew he was obliged, by the defunct testator's order, to deliver up the bond: for, where one legates to the debtor himself his own debt, that is called legatum liberationis; but when he leaves the bond to a third party, it is called legatum nominis. See also the decision, 21st July 1665, Spreui against Murray.
Answered for Cauldra the executor,—1mo, I have done no wrong in charging you, for I am burdened with several debts, and the prestation of some facts; till which be performed, I know not how far the defunct's effects will answer; and, therefore, you must pay it in to me, till the event tell how far it will be free. 2do, I, not being a depender on the house, cannot be thus summarily convened on a bill.
Some thought the executor had the jus exigendi, as well as the special legatar, and that the power was cumulative. Others thought the special legatar had immediate access to it, on his finding caution to refund, if the debt exhausted all. But others said, this was not the proper place for trying this fact, and that it would best come in by way of suspension. And therefore they ordained Gray to expede a suspension, without either caution or consignation; which would bring in the whole, and make it appear if the charge was warrantable or calumnious.
