Citation in Process against the Cautioners of Executors.
Rocheid v. His Debtor's Executor
Date: 5 December 1623 Case No. No 28.
A party discussed an executor, and then insisted against his cautioner. In the action against the cautioner, the executor was called. He died during the dependence. No necessity to call his representatives, as it was unnecessary to call himself.
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Rocheid having obtained sentence against the executor of a defunct, who was his debtor, and having denounced him thereupon to the horn, and discust him, by seeking his lands and goods, and finding none poindable, or to be comprised, intents an action thereafter against L. Manderston, who was cautioner for the executor in the testament, to make the goods confirmed furthcoming; in the which process the executor being also called for his interest, and deceasing after the cause was reasoned, the Lords found no necessity to summon any person to represent the executor, or to transfer the process, but that it might be sustained against the cautioner, without citation of the executor, whom the Lords found no necessary party, he being discust, as said is. And it being alleged, That the whole goods of the testament were exhausted, by a sentence obtained at another creditor's instance against the executors, who had made payment thereof, which absorbed the whole goods thereby confirmed, and that before this pursuer's sentence, it was replied, That the payment cannot be sustained in prejudice of this pursuer, who had cited the executor before the making of payment; so that the executor could not, after his citation, be found in bona fide, to have paid all to one creditor, but he ought to have suspended upon double distress, that the pursuer, as a creditor, might come in pro rata for his debt; seeing he was, by the citation executed before making of payment, certiorate that he was a creditor, and so ought not to have voluntarily done any thing, or to pay to his prejudice. The excipient duplied, That the pursuer had past from that citation in process, so that he cannot be reputed to have done fraudulently in paying the other creditor.——The Lords sustained the exception of payment, and found, that a citation preceding, which was past from, was no impediment to stay the payment; and that it was no such certioration to the executor, which might astrict him to know the pursuer to be a creditor, the said citation being past from, which passing from, rendered the parties and process in that same estate, as if he had not been summoned at his instance.
Act. ——.Alt. Belshes.Clerk, Gibson.
Fol. Dic. v. 1. p. 134. Durie, p. 87.
