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William Lyle having convened Margaret Hepburn, relict and executrix of Francis Lyle, to hear and see a bond of 300 merks granted by her husband to the pursuer's father, registrate against her as executrix, alleged, Quod non tenebatur ultra vires inventarii; and true it was, that all the free goods contained in the testament were exhausted by lawful sentences upon lawful probation, conform whereunto she had made payment. Replied, Not relevant, unless she alleged the decreet, whereupon payments were made, were obtained before the intenting of the pursuer's cause, for she was in mala fide to pay any other after the pursuer had intented his cause, but she should have suspended upon double poinding, and her voluntary payment should not prejudge him.——The Lords repelled the exception in respect of the reply.
Fol. Dic. v. 1. p. 275. Spottiswood, (Executors) p. 119.*** Durie reports the same case:
In this action, a creditor convening the executrix to the debtor, who alleging, that the whole free goods in the testament were exhausted by sentences recovered by other creditors upon lawful probation, whereof she had made payment, this was not sustained to exclude this pursuer, and to liberate the executrix, except she should allege, that these other decreets were obtained by the other creditors against her, before the intenting of this pursuit against her, without which she was not in bona fide to have paid them after the pursuer's citation, if decreets were recovered sinsyne; but she ought to have suspended it upon double poinding, that the pursuer's debt might have been discust, and she either freed thereof by the Judge, or that he might have come in with the rest of the creditors pro rata.
