Found again in conformity with Jeffrey against Gray, No 53. p. 3866.
Click here to view a pdf copy of this documet : PDF Copy
One being pursued as executrix by the defunct's creditor, she defending, that the goods were exhausted by decreets obtained by other creditors for just debts, the party pursuer quarrelling no part of the allegeance, but only that the defender ought to allege, that the decreet was obtained before the intenting of this pursuit, the Lords found not the allegeance relevant, except he alleged, that the decreet was before the intenting of this pursuit; but in such cases these allegeances are not received, except the executors should also allege payment before the pursuit, whereby the goods were exhausted; but this was not quarrelled by the pursuer, as he might in law, for albeit sentence was obtained by another creditor, yet as long as the executor had not paid the whole quantity of the inventory, other creditors ought not to be stayed of their sentences; and then the executor must suspend against all the creditors; and then it would be tried who had the best right, and whose debt and diligence ought to be preferred, but the defender quarrelled not that part of the allegeance.
Act. Stuart.Alt. Cunninghame.Clerk, Scot.
Fol. Dic. v. 1. p. 275. Durie, p. 475.*** Spottiswood reports the same case:
Archibald White pursued the Lady Yester, executrix confirmed to her umquhile husband, the Master of Jedburgh, for payment to him of L. 100 owing by the defunct. Alleged, Absolvitor, because the whole free goods, contained in the testament, were exhausted by lawful sentences obtained against her, whereupon she had raised summons of exoneration.——The Lords found she behoved to allege, by lawful decreets obtained against her, before the intenting of the pursuer's action.
Spottiswood, (Executors) p. 120.*** This case is also reported by Auchinleck:
An executor being pursued at the instance of one of the defunct's creditors, excepted, that the whole goods and gear contained in the defunct's testament are exhausted by lawful sentences, which exception is not relevant, except the sentence be obtained and paid before the intenting of this pursuit.
