Scottish Court of Session Decisions

Subject_1 SUSPENSION.
Subject_2 SECT. I.

Effect of Suspension.

Brown
v.
Pitcairn

Date: 7 July 1626
Case No. No. 3.

One of two debtors having suspended a charge, the defence, that no execution could pass against the other till the suspension should be discussed, was repelled.

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John Brown and Elizabeth Mercer, being executors confirmed to Matthew Allan, recover decreet against Patrick Pitcairn, and certain other persons bound with the said Patrick, for a sum of money addebted by them to the defunct; and the said Patrick being charged thereupon, he suspends, upon these reasons, viz. that the decreet foresaid was recovered upon the charges of John Brown, the other co-executor; likeas, Elizabeth Mercer promised to him, before ever she should seek any execution thereupon, that she should pay to the said John Brown the half of the expenses bestowed by him in obtaining of the said sentence, and also to refund to him what she had received of the defunct's goods more than her own half; it being of verity, that she had meddled with more than her part would extend to, so that she could seek nothing by virtue of this sentence, she being full handed, as said is, of her own half and far more; and the said John Brown compeared in this process, and adhered to this reason, and desired count and reckoning of the said Elizabeth Mercer, co-executor with him. The second reason was, that another of the persons bound conjunctly in the said bond with the said Pitcairn, suspender, had suspended the charges before any charge given to this suspender, which suspension ought to be first discussed before any new charges can be executed against the suspender. These two reason were both rejected; for the Lords found, that Mercer, the other executor, now charger, might charge for the one half of the debt acclaimed, albeit the other executor should not charge for his half, and albeit that the one executor had intromitted with more than her half, but prejudice of the action which any of them might move against the other for count and reckoning, which they found was not proper to come in this suspension, concerning the paying of the debt owing to the defunct, and acclaimed by one of his executors, which might be sought for that executor's own half, albeit the other should not concur: And sicklike, albeit one of the parties bound had suspended, the Lords found, that that was no cause but that execution might be sought against any other party bound conjunctly and severally, he who first suspended being dead, and that the person now charged ought to repeat, in this suspension, any reason and argument contained in that suspension, if any was contained therein, which might suspend the charges and payment now used and sought from him; which former suspension the Lords found not to be a reason to stay execution against this suspender, except the reason thereof being repeated here be relevant to import the same.

Alt. Oliphant. Durie, p. 210.