Citation in Process against Executors; and for their Exoneration.
Tailzifer v. Wilson
Date: 16 July 1629 Case No. No 27.
An executrix pursued, founded her defence upon a decree of enoneration. The pursuer answered, he had not been called thereto, as she knew of the debt. The defence on the exoneration was sustained.
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A creditor pursuing his debtor's executrix for payment of the debt, and the executrix alleging the free goods in the testament to be exhausted by sentences of other creditors, and that she was exonered by a decreet; and the pursuer replying, That she could not be freed of this debt, because the pursuer was not called to the exoneration, whom she could not misken, seeing she had made payment of a part of the debt to him, long before the exoneration, and therefore knew his debt, and could not misken it; this being before the sentence obtained by the other creditors against her, whereby she was in mala fide not to oppone against their pursuits, this debt of the pursuer's, and also not to cite the pursuer to that sentence of exoneration, that he might come in pro rata for his debt with the rest of the creditors; The Lords, notwithstanding of the reply, found the exception of exoneration relevant, seeing they found that he needed not to be cited to that process of exoneration, neither needed the executrix to have opponed against the creditors pursuit the pursuer's debt, for if she had done it, it would not have staid their pursuit; neither did her knowledge of the debt libelled, and paying of a part thereof, bind the executrix to a citation of the pursuer, seeing her knowledge was only voluntary, and not legal, and the same never intimated to the executrix, nor never any action intented by the pursuer for that debt; and if he had been cited in a multiplepoinding against all the creditors, the Lords found they would have preferred all the creditors who had done diligence, to the pursuer who never had done any diligence.
Act. Mowat.Alt. Lawtie.Clerk, Scot.
Fol. Dic. v. 1. p. 134. Durie, p. 462.
