A cautioner in a confirmation, demanded from the executors security in relief, because they were vergentes. Before answer the executors were appointed to account.
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Adam Thomson being bound as cautioner at the confirmation of the testament of Lewis Muir and Margaret Herriot, relict of the said Lewis, and her brother being then obliged for his relief; the said Adam pursues them to warrant him of his said cautionry, and to that effect to find caution, because vergebant ad inopiam, and they had wasted the goods confirmed, to be decerned to find caution to him for his better security. The defenders alleged, That this pursuit was a novelty, to seek warrandice where the pursuer was not able to show any distress; and the desire of finding caution was a greater novelty, whereto they could not be restricted of the law.——The Lords, albeit they inclined to sustain this pursuit, as just and equitable, yet they ordained the parties first to count and reckon upon the goods contained in the testament, whereby it might be first known what became thereof, if they were extant, or to what good or necessary use the samen were employed; and thereafter they would consider of the answer to be given anent the sustaining of this pursuit.
Clerk, Hay.
Fol. Dic. v. 1. p. 126. Durie, p. 259.
