Subject_2 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Anent Discussion
Date: 22 June 1671
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A cautioner in a testament being convened to make the confirmed goods forthcoming; it was excepted, that our law allowed no other action against such a cautioner, but only in subsidium, the executor being first discussed. Infra No. 432, [December 1673,] and 191, [30th June 1671.] Answered, he confessed it was so, and therefore he had discussed him by obtaining a decreet cognitionis causa against the principal, in regard, he having been charged to enter heir, he had renounced. Replied, This is not a sufficient discussion, seeing he must not only be discussed in his lands and heritages, but also in his moveables, by poinding, arrestment, and otherways usque ad peram et sacculum. And it was remembered, that the Lords had found in a debate in the Inner House, an heir of line was not sufficiently discussed, (the defence was proponed by the heir of tailyie,) because they had done no diligence for reaching his heirship moveables: and though it was alleged, that moveables in respect of their uncertainty, and that they might be darned and carried from hole to hole, needed not to be discussed; yet my Lord Castlehill inclined to refuse action against the cautioner, unless they should discuss both the moveable and real estate of the principal debtor.
