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In an action pursued by L. Carnousie against———, wherein Carnousie, as executor to L. Barns, his brother, and as having licence granted to him by the Commissary of Aberdeen, to pursue for a particular debt owing to the defunct, which particular debt was left out of the principal confirmed testament, and came to the pursuer's knowledge since the confirmation, the Lords sustained the pursuit founded upon the licence to pursue granted by the Commissary, albeit there was a principal confirmed testament, wherein the pursuer was confirmed executor, and albeit it was not eked to the testament confirmed; and found, that it was not necessary to eke to the confirmed testament the particular debt libelled, seeing it was uncertain if the pursuer should recover the same or not, but that the licence gave sufficient interest to pursue, without ekeing the same; but ordained the pursuer to find caution to confirm, and make the same forthcoming to the defunct's creditors, or any having interest, in case he recover the same.
Act. King.Alt. Lawtie.Clerk, Gibson.
Durie, p. 99.
