Subject_2 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Anent Discussion
1671.
June30, and
July5.
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June 30.—Arelict being pursued as executrix to her husband, who was cautioner for a curator in the act of curatory. Alleged, 1mo, That her husband being but a cautioner for a curator, the most that was granted against him by law was a subsidiary action, the principal being first discussed; which method they had not observed, ergo. To this it was answered, That he had convened the principal and obtained a decreet against him. Replied, A decreet is not sufficient discussion without horning, denunciation, poinding for moveables, and apprising for heritage. Duplied, Though that was ordinarily requisite, yet a decreet was sufficient here, in regard the principal was notoriously bankrupt the time of the decreet; and it cannot be condescended on that, either at that time, or before, he had any goods or gear; quorsum then should we do farther diligence?
My Lord Gosford would not find a decreet sufficient discussion, unless he would say he was notourly bankrupt, either because he had a bonorum, or because he was at that time lying registrate at the horne, and so the king's rebell at whatsoever persons' instance, and though the year and day was not run. If this only makes a bankrupt non est certi juris. Vide infra, No. 281, [Eleis and Wishaw, 5th December 1671.]
2do, Alleged,—That as executrix to her husband, she could never be liable to fulfil any of his obligements or debts, because she was confirmed executrix as creditrix to her husband upon her contract of marriage, and so was not countable to any other for her intromission. Replied, If she had confirmed no more than what precisely paid herself, then he confessed she could be liable to none; but the truth is, she being creditrix only for L.1400, she had confirmed near L.3000 of her husband's goods, and so must be countable to him for the superplus. Duplied, If she have uplifted any more than what paid herself, then it is just she should count therefore: but ita est she has meddled with no more, (whatever she confirmed,) than what paid herself, and all that in law or reason she can be decerned to do, is cedere actionem. Triplied, An executor creditor confirming more than his sum, ought and should do diligence to recover the whole, else he might suffer the superplus to perish, and none else could have a title to intromit therewith, which were a very dangerous preparative.
Gosford inclined to find them bound no farther but to assign the action; yet on Mr. David Falconer's consigning an amand, he gave him the Lords' answer. Vide 20th November 1678, Lundy and Wishaw. Vide supra, No. 181.
