Where the executor has been confirmed. - Where the party died at the horn:
Douglas v. Toures
Date: 20 June 1629 Case No. No 168.
Click here to view a pdf copy of this documet : PDF Copy
When one is pursued as universal intromitter with any defunct's goods, it is a good exception, that there was an executor confirmed to the defunct before the intenting of the cause; because the executor being a party representing the defunct, all the defunct's creditors have good action against him; but if one confirm himself executor to a defunct as a creditor of his, for payment of his own debts, he is not such a party as action can be had against him for any of the defunct's debts; and therefore such confirmation cannot free an universal intromitter. Yet, in the like case, between Jean Toures and N. Douglas, the Lords would not sustain action against the defender as universal intromitter, but found that the pursuer should take a dative ad omissa by the first executor, who had confirmed himself executor creditor, or yet that he might pursue the intromitter for giving up that wherewith he had intromitted.
Spottiswood, (Universal Intromitter.) p. 352.*** Durie reports this case:
One being convened, as universal intromissatrix with her father's goods, to pay a debt owing to the pursuer by her father; and the defender alleging, That there was another of the defunct's creditors confirmed executor to him, so that thereby she could not be convened as universal intromissatrix; and the pursuer replying, That a creditor confirming himself executor in aliquo individuo, only to the effect his own debt might be paid, that could not take away the action competent to another creditor, against the intromitter with other goods, by and attour that which was confirmed, and that he could not have action against the executor:—The Lords found, that there being an executor confirmed ante captam litem, albeit he was only a creditor, against whom no other creditor could have action in law, yet that thereby no other could be convened as universal intromitter; but that the pursuer might either seek a dative ad omissa, or else insist against the defender, as intromitter, to make the particulars, which should be proven to be intromitted with by her, furthcoming to the pursuer, or the prices thereof; for which particulars sentence should only follow against the defender, and for the which the action was sustained; but not to make her liable to the debts as universal intromissatrix, for the which the action was not sustained; and election was given to the pursuer, either to insist against the defender in this same process as intromitter to the effect foresaid, or else to seek a dative ad omissa. See Service and Confirmation.
Act. ——.Alt. Mowat.
Dic. Fol. v. 2. p. 42. Durie, p. 448.
