Found that an executor cannot pay even upon lawful sentences, in prejudice of debts given up as due by the defunct in his testament; but that he must raise a multiple-poinding.
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John Scougall writer pursues John Horseburgh, son and executor confirmed to Alexander of that Ilk, for registration of a bond of 1000 merks, granted by Alexander to the pursuer. Alleged, The free gear confirmed is exhausted by sentences and exoneration obtained before the intenting of the action. Replied, He cannot obtrude the exoneration, because he was in mala fide to have paid, and not intimate the creditors' pursuits to the pursuer, wha was such a creditor as he could not misken, because he offers to prove that there was a testament testamentar wherein the defender was nominate executor; and the pursuer's debt, was therein given up by the defunct in the defender's presence; likewise the defender, after the nomination before the confirming of a dative, intromitted with the defunct's goods, and so acknowledged the pursuer's debt, and so cannot obtrude an exoneration upon the dative.
Admit the reply and summons to the pursuer's probation, who protested for incident.
Act. Nicolson.Alt. King.
Fol. Dic. v. 1. p. 275. Nicolson, MS. No 154. p. 109.
