A cautioner for an executor was not allowed to propone exhausting, the the principal having proponed it and succumbed.
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Wood of Craig having obtained a decreet against the Executors of one Ker, who was his debtor, and having put them to the horn, thereafter pursues one James Wood, who was cautioner for the executors in the confirmed testament, to make the goods confirmed forthcoming, for satisfaction of the debt contained in his sentence. The defender, who was cautioner, compearing, proponed an exception, that the whole goods of the testament were exhausted by lawful sentences, recovered debito tempore by true creditors. The Lords found this exception could not be received, being now proponed by the cautioner, seeing, in the action whereupon the pursuers had recovered sentence against the executors, the same was proponed by them, and admitted to their probation, and the term circumduced against them for not proving thereof; and, therefore, that the same ought not to be admitted again to the cautioner's probation; and this was found, albeit the cautioners were not called, nor compeared in that process, where the same was proponed by the Executors; and albeit he alleged, That what was done there ought not to prejudge him, he not being then party, and that their omission ought to burden none but themselves, and ought not to take the benefit of this lawful defence from him; which was repelled, as said is.
Act. Nairn and Mowat.Clerk, Gibson.
Fol. Dic. v. 2. p. 351. Durie, p. 54.*** Haddington reports this case:
Archibald Wood of Craig having obtained a decreet against the executors of his debtor Carre, because they having proponed an exception of exoneration, suffered the term to be circumduced, Craig pursued Mr James Wood, cautioner for the executors in Wood's testament, to pay the sum contained in the decreet, obtained against the executors for whom he was caution. He compearing, proponed the exception of exoneration, which the executors had proponed, and failed to prove, and he offered to verify the same. The Lords repelled the allegeance, because the admitting of it would have made the decreet against the executors null, and frustrate Craig of all his decreet and action, whereas Mr James Wood had his action of relief against the executors.
