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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.
Reid v. Telfer
Date: 16 November 1666 Case No. No 76.
A testament is to be reckoned as executed, and no place for a confirmation ad non executa, when a decree is recovered against the debtor, tho’ the executor die before payment is made.
See No 79. p. 3884.
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In the case, William Reid contra Telfer and Salmond, it was found, that a testament is to be thought executed, so that, thereafter, there is no place to a non executa, when a decreet is recovered against the debtors; though the executor decease before he get payment; because the right of the debt is fully established in his person by the decreet; and he having done diligence, it ought not to be imputed to him, that the debtor is in mora as to the payment of the debt; and there being jus quæsitum by a decreet, and execution having followed thereupon by horning, after which annualrent, though not due ex pacto, yet becometh due ex lege, or by comprising at the instance of the executor, and infeftment thereupon, it were absurd, that all these rights should evanish; which would necessarily follow, if there were place to a non executa; seeing the decreets and rights foresaid followed thereupon, could not be transferred or settled in the person of the executor ad non executa, who doth represent the defunct only, and not the executor, at whose instance the decreet is obtained and executed.
