Scottish Court of Session Decisions

J. C. M'Gaan, as executor-dative of the late W. M'Gaan, sued John French and others (marriage-contract trustees of W. M'Gaan and his wife) for £41, 2s. 7d. as a balance due to the deceased (who as the survivor of the spouses was entitled to a liferent of the income of the funds in the trust) after giving credit for various sums. The

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defenders claimed to take credit also for the amount of an account said to have been incurred by W. M'Gaan, which they had guaranteed payment of to a creditor of his, and had ultimately paid. They tendered £18, 2s. 4d. as the balance due to the pursuer, and had tendered payment of it before the action was raised. The pursuer's objection to give credit for this account was, that it had not been constituted as a debt against M'Gaan, that he believed it not to be due, and that the defenders had no authority to pay it. After the action came into Court the debt was constituted by an action in the Debts Recovery Court. The Lord Ordinary decerned for £18, 2s. 4d., the amount tendered, but in “respect that the said sum was tendered by the defenders to the pursuer before the action was raised,” found defenders entitled to expenses.

The pursuer reclaimed, and argued that he was not bound to give credit for the sum contained in the account until it had been constituted, because an executor was not bound to pay an alleged debt till it was constituted, and was entitled to require the creditor in it to constitute it at his own expense—Stair, iii. 8, 66; Erskine, iii. 9, 43, and cases there cited; Carruthers v. Hogg, 7 S. 81.

At advising—