Where exhausting was omitted by the executor, it was admitted for the cautioner being instantly verified.
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Arnot having recovered-decreet against the Executors of one Hume, for payment of a sum addebted by the defunct, after he had denounced the Executors to the horn, by virtue of that sentence, and sought their moveables to have poinded them; and, finding nothing, neither moveables nor lands, of the executors' poindable, or to be comprised; thereafter Arnot pursues Manderston, who was cautioner for the Executors in the confirmation of the defunct's testament, to make the goods furthcoming for satisfaction of this sentence; wherein the cautioner, who was convened, compeared, and alleged, That all the goods and gear contained in the testament, were exhausted by a lawful decreet recovered debito tempore before the pursuer's sentence, at the instance of another creditor for a lawful debt of the defunct's, to whom payment was made. This exception was found reelevant by the Lords, albeit the pursuer replied, That it could not be admitted against the decreet standing, obtained at his instance against the Executors; which reply the Lords respected not, seeing the cautioner could not be prejudged by that decreet against the Executors, wherein he was neither party called nor convened, and he could not by that sentence inter alios be prejudged of his lawful defences, specially seeing he instantly verified the same without delay, which was found sufficient to absolve the cautioner; for the payment made, conform to the sentence, was a fulfilling of that whereto the cautioner was bound, and being once done and performed, he could not do it over again, and so thereby was freed of his cautionry, and which was competent to him to allege, albeit the executor should omit the same. This decision seems contrary to the decision made betwixt Wood of Craig, and the Executors of Carre, and their cautioner, whereof mention is made 4th March. 1623, No 32. p. 14049.; and 5th December 1623, Rocheid, No 28. p. 2190; except that in that decreet against the Executors in that process, the Executors compeared, and proponed that exception, and succumbed therein, which was not here alleged by the executors.
Act. Nicolson.Alt. Belshes.Clerk, Gibson.
Fol. Dic. v. 2. p. 351. Durie, p. 71.
