A sum due by a writer's account, was paid after his death to the husband of his daughter, his executrix. Afterwards a receipt for part of the sum was found. The daughter pleaded against repetition, that her husband, to whom it was paid, was dead, and she did not represent him. She was found liable as representing her father, reserving action against her husband's executors.
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Upon the death of Hugh Sommervile, writer to the signet, who had been doer for the Lord Mordaunt, now Earl of Peterborough, there was a sum, as the balance due to him upon his accounts paid in to Mr James Geddes, and Mr Hugh Murray, his daughters' husbands, without this particular being confirmed; but after their confirmation as nearest of kin, which the Lords have since found determined the interest of parties with regard to the whole executry.
Afterwards there was found a receipt of Mr Sommervile's for L. 50 Sterling from my Lord's factor, to be employed for his Lordship's law affairs, in so far as not already employed, and for this receipt no credit had been given in the account.
My Lord Peterborough pursued Mrs Murray, one of the daughters, for L. 25, being her share of the L. 50, as representing her father, who pleaded, That the sum was indebite solutum to her husband now dead, and ought to be made good by his executors.
Pleaded for the pursuer; That there was no undue payment; for that Mr Sommervile's claim on the balance of his accounts, and his Lordship's claim upon the receipt, were separate debts, and there was no necessity of making use of the one of them to compense the other; for a person may chuse whether to propone compensation, or to pay his own debt, and afterwards insist for the one due to him.
Pleaded for the defender; That no more was due to Mr Sommervile than the balance of his account, wherein he ought to have been charged with the sum in this receipt, which the pursuer had in his hands; and he having made an undue payment to Mr Murray, whom the defender does not represent, she cannot be liable for it.
The Lords repelled the defence, reserving action against the executors of Mr Murray.
Reporter, Lord Justice Clerk.Act. A. Pringle.Alt. W. Grant.Clerk, Kilpatrick.
Fol. Dic. v. 3. p. 156. D. Falconer, v. 1. p. 107.
