Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

M'Kenzie of Suddie
v.
The Countess of Seaforth

Date: 4 February 1681

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Mackenzie of Suddie, having confirmed himself executor-creditor to the deceased Earl of Seaforth, as being cautioner for him, and distressed, pursues for delivery of his moveables.

The Countess of Seaforth, having confirmed herself executrix-creditrix, also compears, and alleges, She ought to be preferred; because Suddie, not having paid the sums in which he was engaged cautioner, as he could not have poinded the Earl's goods unless he had paid, so neither can he claim the same goods as executor-creditor: otherwise the debt might be satisfied by the Earl's goods, and yet the Earl not liberated of the debt, but put to an action against his cautioner to purchase him a discharge; whereas the Countess hath confirmed upon most privileged debts, such as the Earl's funeral expenses, to which she was assigned.

It was answered, That Suddie, having the first confirmation, which is a decreet of the commissaries standing unreduced, there is no place for the Countess her posterior confirmation for the same goods; but Suddie would have the sole administration, though he had been a mere executor-dative. 2do. He offers, before he extract, to produce a discharge, from the Earl's creditors, to his successors, of the equivalent sum.

The Lords preferred Suddie to the administration, he producing a discharge before he extract; but allowed the lady to be heard upon the funeral charges, which is a preferable debt to all others, not as executor, but as a creditor.

Vol. II, Page 855.