Vitious Intromission Purged by Confirmation, or by declarator of escheat.
Miniman v. Ramsay
Date: 25 November 1630 Case No. No 196.
Found in conformity with No 194. p. 9868.
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William Miniman pursuing David Tindale and Elizabeth Ramsay, as executors or intromitters with the goods of John Fullerton, burgess of Dundee, his debtor, to pay him his debt, Tindale alleging, That he could not be pursued as intromitter, because Ramsay, the other defender called, was executor confirmed to the defunct, in respect whereof, albeit the said testament was confirmed post cæptam litem, and after expiring of a year, and much more after the defunct's decease, yet seeing it was a testament testamentar, made by the defunct's own nomination, of Ramsay his relict, to be his executrix, and that she was also called in this same process, whereby the pursuer's action would proceed against her; therefore, the Lords found no process against the other party, who was called as intromitter, seeing he was liable to the executor, and the executor to the creditor.
Act. Russel.Alt. ——.
Fol. Dic. v. 2. p. 45. Durie, p. 541.
*** In this case a conjunct intromitter, called in the process, was assoilzied from vitious intromission, and found only accountable to the executor testamentary; but, in other cases, where such indulgence is not given, a confirmation after year and day will be no defence against a process already commenced; and this was, in the case of Cochran against Sturgeon, 20th March 1624, No 146. p. 9825. so strictly taken, that a confirmation, after year and day, was not sustained, being posterior to the execution of the summons, though before the day of compearance.
