Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.
Subject_2 COMPLAINT FORM STIRLINGSHIRE.

Ross
v.
Sutherland

Date: 16 November 1757

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Ross, creditor of the deceased——, confirmed, as executor-creditor, certain debts due to the deceased; and, being informed that there were other debts of his which might be made effectual, and of which the documents were to be found in his repositories, he applied to the commissaries for a warrant to search those repositories; and, having found the papers he wanted, he brought an action against the debtors in the bonds he had recovered, in order to try what could be made of the debts before he was at the expense of confirming them. While this suit was going on, Sutherland, and other creditors of the deceased, took out an edict, and confirmed these debts, as executors-creditors ad omissa, for the payment of which Ross was pursuing. The question was, Which of these creditors was preferable?

The President and Lord Coalston were of opinion, that the being decerned executor, whether as creditor or as nearest of kin, conferred the office, and gave a title to pursue for every subject belonging to the defunct. And they further thought that such executor, pursuing to recover payment of any subject, was preferable to another creditor stepping in and confirming the subject; because they thought his nimious diligence would not give him a preference to the other creditor, who was not in mora; in the same manner as a posterior arrester, though he recovered the first decreet of forthcoming, will not be preferable, if the first arrester be not in mora.

Prestongrange thought that an executor-creditor decerned could have no title to pursue for any subject not contained in his inventory, unless he had a license; and therefore he thought, in this case, Sutherland had the only right.

Lord Kaimes, and the majority, were of opinion, that, as Ross was at least in cursu diligentiæ, he ought to be preferred pari passu with Sutherland.

It did not appear to be certain what they would have done, in case Ross had had a license to pursue,—whether they would have preferred him simply, or both pari passu.