Douglas of Cavers, and other Creditors of Thomas Pringle, v. Walter Pringle, his brother
Date: 5 February 1724 Case No. No 7.
A creditor of a defunct pursued his heir cum beneficio to assign the heritage in his inventory. Answered, he was obliged only to make the value furthcoming. Found that the heir must either pay or assign.
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The defender was nominated and appointed sole executor and universal legatar in his brother's testament, and had served heir to him cum beneficio inventarii.
Cavers, and the other creditors of Thomas, upon his decease, obtained decreets of cognition before the Commissary of Peebles, and upon these they not only were decerned executors creditors to the defunct, made up inventories and confirmed the same, but they also pursued Walter for payment of their debts, as representing his brother passive.
The defender pleaded his service, as heir cum beneficio, in bar of this action, and the defence was sustained.
The pursuers afterwards insisted, That he should be ordained to assign the heritage contained in his inventories to them, effeiring to their several debts.
To this the defender objected, That an heir cum beneficio was not obliged to assign the inventory, but only to make the value thereof furthcoming to the creditors, as was plain from the words of the act of Parliament 1695: And further, he contended, That whatever might be the fate of the general point, yet, in this case, he could not be obliged to assign to these pursuers, who were executors decerned and confirmed, and by the confirmation appeared to have subjects in their hands far exceeding the debts acclaimed by them.
It was answered, That the general point had been determined 8th November 1712, Vint against the Lady Hawley, No 6. p. 5335. where my Lady Hawley was expressly decerned either to assign or pay. And to the other part of the defence it was answered, That a creditor had power to affect all the subjects belonging to his debtor, for his security till payment: An arrestment could not hinder an adjudication, nor e contra, though the subjects differently attached should far exceed the debts upon which the diligences proceeded.
The Lords found, that Mr Pringle must either pay or assign.
Act. Ch. Areskine.Alt. Wal. Pringle.Clerk, Dalrymple.
Fol. Dic. v. 3. p. 261. Edgar. p. 22.
