Scottish Court of Session Decisions

Subject_1 LEGAL DILIGENCE.
Subject_2 SECT. III.

Process against parties subsidiarie liable.

Patrick and Joseph Douglas
v.
Lindsay of Wormystoun

1662. December.
Case No. No 23.

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Patrick and Joseph Douglasses pursues Catherine Lindsay, their mother, as executrix to their father, for count and payment of their share of the executry, and also the said Lindsay of Wormystoun, as her cautioner found in the testament, who alleged no process against him as cautioner, till the executrix herself were first discussed, not only by count and sentence, but also by apprising of her estate, poinding of her moveables, and if nothing can be condescended upon to poind and apprise, at least by registrate horning against her person, this being but a subsidiary action as to the cautioner.

The Lords repelled the allegeance, and sustained the account against both, superseding all execution against the cautioner till the executrix were discussed, as aforesaid, which is both to the advantage of the cautioner, who may concur with the executor, who is only able to make the account, and it is also to the advantage of the pursuers, that the cautioner resume not the allegeances omitted by the executor, and so make new process and new probation, as oft falls out.

Fol. Dic. v. 1. p. 537. Stair, v. 1. p. 147.