Scottish Court of Session Decisions

Subject_1 EXECUTION.

Margaret Moubray
v.
Agnes Simpson, her Brother's Relict

Date: 27 February 1741
Case No. No. 8.

communication of cases.

Click here to view a pdf copy of this documet : PDF Copy

A relict being decerned executrix qua creditrix to her husband, and then another creditor being also decerned, the relict transacted with him, got an abatement, and gave her obligation for the transacted sum, obliging her particularly to make over to him particular subjects, part of the executry for his further security; after which she took a new decreet dative upon that and her former grounds of credit, and then confirmed. The Lords found her bound to communicate the benefit of the ease to the cxe-cutry, that is to the nearest of kin, and allowed her credit only for the sum truly paid, and remitted to the Commissaries with that instruction; though we thought that a creditor transacting a debt due to another creditor, before he himself was decerned executor, would not be obliged to communicate the ease; and several of us were of the same opinion as to transactions even after the decreet-dative and before confirmation; but we thought she made this transaction qua executrix, and though not actually confirmed, yet she thereby obliged herself to confirm. (See Dict. No, 20. p.3839.)