Whether co-executors have action pro rata, or must all concur in pursuing and discharging?
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A debtor having made a partial payment to one of four co-executor creditors, but within the fourth part of the bond, the same was objected to as exceeding the sum to which the said co-executor's claim extended; which the Lords “Sustained, and found the payment was in so far unlawfully made.”
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 do not exceed the co-executor's share; but the case of co-executor creditors is different; a voluntary payment to one of them will be sustained or not, according as the person receiving payment shall in the event be found entitled to the extent of the sum he receives.
