If there be a Co-executor. - If the Executor die before obtaining Sentence. - Every creditor may take decree, and the defence of exhaustion will be reserved contra executionem.
Young v. Murray
Date: 16 June 1629 Case No. No 73.
A co-executor having been excluded from his office by decree of the commissaries, the office was found to accresce to the remaining executor.
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Two being confirmed executors to a defunct, and a pursuit being moved in both their names against the debtor, one of the two not assisting the pursuit; this action was sustained at the executor's instance, who insisted without concourse of the other, for the whole debt acclaimed; because the Commissaries of Edinburgh, who had also confirmed both the two alike executors by their decreet, after the said confirmation, had secluded that executor from the office and benefit of the executry, seeing he had refused to concur with the other in doing diligence, and making equal charges for recovery of the debts and goods pertaining to the defunct; but the decreet which secluded him, was not given upon trial and probation of his not concourse, but only for not compearance, being summoned for that effect, and absent; notwithstanding whereof, it was sustained, with the action at the executor's instance for the whole; albeit the decreet which secludes an executor from his office, is ever in use to be given before the confirmation, for either refusing to accept or to make faith, or to find caution, or such like other causes, he is debarred, and not confirmed executor, but the intromission is committed to the other, who uses solely to be confirmed, and uses not to be done after they are confirmed, but yet it was sustained here after the confirmation.
Act.———.Alt. Aiton.Clerk, Gibson.
Fol. Dic. v. 1. p. 277. Durie, p. 451.
