A creditor can have no action against a cautioner in a confirmed testament, till he discuss the executors, and it is not sufficient discussion to put them to the horn. He must also poind, and if there are no moveables, apprise.
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In an action pursued by John Arnot against Patrick Abernethy, the Lords found that the creditor of a defunct testator could have no action against him who was cautioner for the confirmed executor, to make the testate goods furthcoming, albeit the executor was put to the horn upon a decreet obtained by the creditor; unless the said creditor had shown where he had searched and sought the goods of the executor to have poinded them, and his lands, to have comprised them; and that decreet and horning was no lawful discussion, albeit the cautioner defender condescended not upon any particular lands or goods pertaining to the defender, which I thought absurd.
Fol. Dic. v. 1. p. 249. Haddington, MS. No 2760.*** Durie reports the same case:
John Arnot having recovered decreet against the executors of umquhile John Home, who was his debtor, and having denounced them to the horn, thereafter pursues Patrick Abernethie, who was cautioner in the confirmed testament for the executors, to make the goods confirmed furthcoming; to hear him decerned to make the said goods furthcoming, seeing he had discust the executors, by putting them to the horn.——The Lords would not sustain the process against the cautioner upon that ground, because the executors were denounced rebels, seeing thereby they found the executors not sufficiently discust; for the creditor ought to have sought the executors moveable goods, and poinded them, if they had any; and if they had none, he ought to have comprised their lands, which ought all to have preceded, and been done, before he could have recourse against the cautioner in the testament; or if they had no moveable goods, nor heritage, they ought to have lawfully searched the same, and after diligence, if they had none to poind or apprise, then they might come upon the cautioner, and no otherways; for without that diligence the executors were not discust sufficiently, albeit they were denounced upon the sentence obtained against them.
Act. Nicolson.Alt. ——.Clerk, Gibson.
Durie. p. 45.
