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Scottish Court of Session Decisions >>
Anderson v Monteir. [1637] Mor 3852 (16 June 1637)
URL: http://www.bailii.org/scot/cases/ScotCS/1637/Mor0903852-037.html Cite as:
[1637] Mor 3852
An executor who paid a debt without decree was ranked pari passu with other creditors doing diligence. The reverse was found in No 41. p. 3855. as reported by Dirleton.
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Dr Anderson having obtained decreet against Margaret Monteir, as executrix to Steven Philp her husband, who was cautioner for Archibald Drummond, for payment of 500 merks addebted to him by the said Archibald, and by her said husband, and as cautioner for him; which being suspended, that she was only answerable secundum vires inventarii, which was all exhausted by decreets, and payment made thereof, before the obtaining of the Doctor's decreet: And the articles of the payment being desired to be instructed amongst the articles of defalcation, she produced a bond granted to a creditor of her husband's, which was not registrate, nor no sentence obtained thereupon, but only paid by the relict, (which she instructed,) and the bond retired by her. And the Doctor answering, That that ought not to be allowed without a sentence; the relict alleged, That there needed no sentence, the payment being made to a true creditor, before the Doctor's decreet, to whom her husband was only a cautioner, whereby she neither could, nor had necessity to know that her husband was bound:——The Lords found, that this payment without a sentence ought not to be allowed in prejudice of a creditor who had done diligence, and recovered sentence; but found, that the Doctor should come in with her pro rata, and would not allow that payment as an article to exhaust the testament in toto, and to prejudge totally the Doctor.
Act. Anderson & Mowat.Alt. Paip.Clerk, Hay.
Fol. Dic. v. 1. p. 274. Durie, p. 845.
