Where evidences of trust were offered, a previous accounting was ordered.
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Mr. James Elphinston having right to an apprising, deduced at the instance of Agnes Denholm, relict of one James Cameron, whereby for some annuities due by her contract of marriage, certain tenements in Edinburgh were apprised by her husband in anno 1659, upon a decree obtained against Helen Syme, as executrix to David Grahame her second husband, for payment of the sum of 12,000 merks, which he provided to the said John, James, and Janet Camerons, in case of the decease of his own two daughters, which decree was obtained in anno 1646; upon this right Mr. James Elphinston pursues the tenants for mails and duties. Compearance is made for Helen Syme, who alleged that she had raised reduction of all this progress, upon two reasons, 1mo, That the decree against her as executrix was in absence, and she now alleges that before that sentence, the defunct's testament was exhausted; 2do, That she suffered decree to pass, and also her third husband granted a disposition of all his goods to her children, that thereby they might be preferred to other creditors of her third husband; and condescends upon several evidences of trust, and produces a back-bond for that purpose. It was answered for the pursuer, That the reason of exhausting, though competent ab initio, or de recenti, yet it is not competent now after so long a time, the right passing through two singular successors, and upon that decree there being two apprisings; but if exhausting had been proponed in due time, a reply of super-intromission might have been sustained, or a dative ad omissa et male appretiata taken, which can be of no effect now, the goods being disposed of, and the executrix insolvent. It was replied, That it is an unquestionable principle, that parties may be heard on a reduction in the second instance against decrees in absence; and the common style is, “That if they had appeared, they would have alleged, and now do allege,” &c. which nothing can exclude but prescription, and though it be not so favourable after so long a time and progress of rights, to reduce the same, and might infer that the reducer should satisfy the whole expenses of that progress, yet that cannot exclude lawful defences; but it cannot be pretended, that if a party decerned in absence would produce a discharge, but it would reduce the decree at any time within prescription, and all the diligence founded thereon would fall in consequence, though the right had gone through an hundred hands for most onerous causes; the defect of the ground being, that the decree was in absence, is effectual against all singular successors, for bona fides non patitur ut idem bis exigatur, which holds as well in this case as in the case of payment and discharge; for if the executrix was exhausted, she had made payment of all she was due as executrix; and if she must pay this sum after she is exhausted, it would be double payment; and in this case there is not so much as favour, for though there was a decreet in 1646, and though the sum decerned did bear no annual-rent, which might have been helped by a horning upon the decreet, yet nothing followed till the apprising 1659; and since no possession was attained upon the said apprising, but is now sought, the executrix having still remained in possession by her life-rent right, of the tenements apprised, and it is not debated, but after her decease the apprising will be effectual.
The Lords, before answer to the point of trust, ordained the parties to count, to know whether the executrix be exhausted, for they did not find exhausting excluded by the length of time alleged, or the progress to singular successors.
