A son confirmed executor creditor to his father after intenting action a-aginst him as intromitter was assoilzied.
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Thomas Smith pursues John Gray as intromitter with his umquhile father's goods and gear, to make payment to him of a sum addebted to him by his said umquhile father. In the which action, this exception was found relevant to assoilzie the defender, in so far as he was convened as intromitter, viz. that the defender alleged, that he himself was executor confirmed to his umquhile father, and so had beneficium inventarii, and could not be further convened as intromitter; likeas, he was confirmed executor, as a creditor of his father's; for he being cautioner for him to sundry persons, he had paid to them their debts, wherein he was cautioner for his father, and had taken assignation from them to their bonds, and for relief of his cautionry he was confirmed executor.—Which exception was found relevant, albeit the pursuer replied, that the confirmation was done post hanc litem ceptam, and after he was summoned, and after the day of compearance therein, and also that he had intromitted with his father's goods before the confirmation; which preceding intromission could not be purged by the subsequent confirmation, to exclude the action which arose to the creditor thereby before that confirmation, and he was in mala fide to do the same in prejudice of this creditor. Which reply was repelled, and the exception sustained, seeing the confirmation, albeit after the intenting of the cause, was within less than a year after the defunct's decease.
The same was found before in this same session betwixt the relict of Robert Dawling and James Hume, where the Lords found no process against James Hume as intromitter, the bairns of the defunct being confirmed executors to him within year and day, albeit after the intenting of the cause.
