Scottish Court of Session Decisions

Subject_1 IMPLIED DISCHARGE and RENUNCIATION.
Subject_2 SECT. XIV.

Discharge of Trust. - Settlement of Factory-accounts. - Expenses of plea after extract.

Hog
v.
Niven

Date: 11 June 1629
Case No. No 86.

One whose trust is taken off his hand, cannot be afterwards challenged for neglecting to do diligence.

In this case, an executor, having taken decree against the defunct's debtors, assigned to the universal legatee. The acceptance of the assignation barred challenge for neglect of diligence.

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One Niven being executor-testamentar nominated and confirmed to umquhile Hog testator, and in the same testament the whole gear being left to Mr Thomas Hog, son to the testator, who was left universal legatar by the defunct, so that the executor had only nudum officium; and the executor having recovered sentence against some of the debtors named and given up in the testament; thereafter the legatar having convened the executor for payment of the debts given up in testament, it was found that the executor having made the legatar assignee to the decreets obtained by him against the debtors, that he was not further obliged to pay the debts to the legatar, seeing the executor had only a naked office, and the legatar only the benefit; and found that the executor had no necessity to put the decreets against the debtors to execution, either by poinding or horning; neither was obliged to make the debts good, albeit the debtors had become bankrupt, or unanswerable to pay thereafter, they being responsal, if the sentences had received execution; for which the executor was not answerable, nor was obliged in diligence, he being free of all fraud or collusion with the debtors, and he never being desired by the legatar to concur with him in any act against the debtors; so that the assignation made by the executor to the debts and goods contained in the testament, in favour of the legatar, with all that follows thereupon, was found sufficient, and that the same extended also to the decreets obtained by the executor, before the assignation, albeit the same bore not ‘to be made to the decreets,’ seeing it bore “in and to the debts, and all that had followed thereon;” but in this case, the assignation was received and kept a long space by the assignee before he pursued the executor, the debtors being then deceased, who were living the time of the receiving and making of the assignation; likeas the assignee had caused charge the debtors upon his own charges, whereby he had accepted the assignation; and so it was found, that a naked executor, where there was an universal legatar, was not obliged ad diligentiam.

Act. Aiton & Miller. Alt. Mowat. Clerk, Gibson. Fol. Dic. v. 1. p. 439. Durie, p. 444.