Eviction by process, whether it must be intimated?
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Alexander Clerk's name being put in trust in a thirty-two part of a caper-ship for the behoof of Mr. Thomas Buck, after whose death Gordonston having confirmed Mr. Thomas Gordon executor-creditor to his behoof, did count with Clerk, and received a disposition of Buck's share of the caper, and payment of £80 as his share of the profit by the caper, by making prize of the ship called the Calmer; whereupon Gordonston granted to Clerk a discharge of all that could be acclaimed from him upon account of the caper-ship, or profits thereof. Thereafter the Lords reduced the adjudication of the Calmer, and Clerk and the other owners were decerned in solidum to refund the value, whereof Clerk's share came to 200 merks; whereupon he charged Gordonston upon his warrandice, who suspended on this reason, that the warrandice could import no more but repetition of what Gordonston received, which was only £80. It was replied, That Clerk was seeking no benefit by the warrandice, but to be relieved of the distress, which he was specially obliged to warrant. It was duplied, That no intimation was made to Gordonston of the process inferring the distress.
The Lords found Gordonston liable to relieve Clerk of the whole distress, albeit the plea was not intimated to him, unless he can allege or instruct a relevant defence, that could have defended Clerk in whole or in part.
