Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. XIV.
Executors how liable? - In a Process must they all concur, or have they Action pro rata?
Inglis of Murdiston v. Mirrie
Date: 7 November 1738 Case No. No. 77.
Click here to view a pdf copy of this documet : PDF Copy
Four creditors of a defunct having been conjoined in the office of executry, and the debtor of one of the bonds confirmed having made partial payments to one of the executors confirmed, but within the fourth part of the bond, the same was objected to, as being more than the creditor's claim extended to. The debtor pleaded, That without regard to the extent of their respective debts, executors creditors conjoined in the office have an equal interest in the administration, and debtors are in safety to pay an equal proportion to each of them. It was the unanimous opinion of the Court, That co-executors must all concur in pursuing or discharging, because they have but one office, are one body, and represent the defunct as one person, and therefore any one making payment to a co-executor, without concurrence of the rest, does it at his peril. It is true the danger is not great, where the co-executors are nearest of kin, who have an equal interest, in case the payment does notexceed the co-executor's share; but the case of co-executors creditors is different; a voluntary payment in that case to one will be sustained or not, according as the person receiving payment shall, in the event, he found a lawful creditor; and therefore it was agreed, that in this case the payment was not lawfully made.
Fol. Dic. v. 2. p. 383.
*** For Kilkerran's report of this case see Title to Pursue.
