Vitious Intromission Purged by Confirmation, or by declarator of escheat.
John Adie v. John gray
Date: 24 January 1628 Case No. No 193.
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John Adie pursued John Gray as universal intromitter with his father's goods and gear. Alleged, He could not be convened as intromitter, because he is executor confirmed to his father, and so has beneficium inventarii, and should be comptable only for the free gear in the testament. Replied, That he has confirmed himself executor after the intenting of the pursuer's cause. Duplied, That he did confirm within year and day, which he might do lawfully, notwithstanding of the pursuer's action intented. The Lords found the exception and duply relevant, and sustained the action against the defender only as executor.
Fol. Dic. v. 2. p. 45. Spottiswood. (Executors.) p. 114.*** Durie reports this case:
1628.—January 24. John Adie pursues John Gray in Leith, for payment of a debt owing to him by the defender's father, for which payment he was convened as intromitter with his father's goods, &c. The defender alleged, that he could not be pursued as intromitter, seeing he was confirmed executor to his father, which allegeance, was sustained; in respect whereof the Lords found no process against him hoc nomine, as intromitter, and nevertheless that the defender was confirmed executor post hanc litem cæptam; yet the said allegeance was sustained, seeing he was confirmed within year and day after the defunct his, father's decease; but the Lords in the same action sustained process against the defender as executor, seeing he himself was executor, who was convened as intromitter, and so there was no reason to put the party to any new process against him, seeing he had once deduced his process legally, in a lawful manner, against him who then was only intromitter; and his being executor ex post facto, by that deed done by him since, could not impede the course of his proceeding against him in this same procedure, as executor; albeit if any other but the defender's self had been executor, the party behoved to pursue that executor by a new process, and the process against the intromitter would have ceased; and so the defender being executor, had beneficium inventarii, which he as intromitter could not have.
Act. Primrose.Alt. Mowat.Clerk, Hay.
1628. January 26.—In the cause betwixt Adie and Gray, mentioned supra January 24th 1628, the pursuit being sustained against the defender as executor albeit confirmed post litem cæptam; and therefore the defender, who by the confirmation had beneficium inventarii, alleging, That the goods confirmed were exhausted by payment made by him to creditors of the defunct, to whom this defender was cautioner for his father the defunct, who had registrate their bonds against this excipient, the terms of payment being all by-past, and the bonds registrate before the intenting of this pursuit, and payment also made before the same; this exception was sustained, albeit the pursuer replied, that this defender being obliged as cautioner for his father, his paying of the creditors could not make defaliation of the defunct's goods to the defender, seeing the defender behoved here to be considered as another creditor of the defunct's; and so seeing the pursuer had intented his action against him for his debt, before he was confirmed executor, he cannot be debarred, but must have the defunct's goods made forth-coming to him, being first in his diligence, there being no pursuit moved against the excipient by any other of the defunct's creditors; for albeit he was cautioner for the defunct, and had paid for him, yet that behoved to be respected, as done for liberation of his own debt, he being bound himself, and cannot have respect to the defunct's debt, no pursuit being moved against him as executor to the defunct, but as a cautioner who was personally obliged; neither can the relief seeking upon the defunct's gear by the defender, which makes him a creditor to the defunct, be respected to be more valuable to him, but from that time when he was confirmed executor, and that is after the pursuer's diligence; so that his being full-handed with his father's goods, they cannot be retained by him for satisfying of his own debt totally, and to prejudge the pursuer of his, but ought to be made forth-coming proportionally to them all pro rata. This reply was repelled, for the Lords found the defender might defalk and exhaust the goods in the testament, for relief of the sums paid by him before the intenting of the pursuer's cause, wherein he was preferred to the pursuer, albeit he intented this cause before the confirmation, but if the payment had been made since the intenting of this cause, it would have been more questionable, if it should have been allowed to the pursuer's prejudice; likeas the 2d February 1628, in this cause, the defence being reformed and restricted, that he was only cautioner for the father for sums, whereof the terms of payment were past before the intenting of this cause, albeit neither sentence nor payment was before this cause, yet he had reason to retain for his relief of the debts confirmed, whereof the term was past, as said is, for he was an inevitable debtor;—this allegance was repelled, seeing no payment made before the confirmation, and so he ought only to come in pro rata with the other creditors.
Act. ——Alt. Mowat.Clerk, Hay.
Durie, p. 330. & 332.
