Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ROBERT MACGILL, LORD FOORD.

Jean Boswell
v.
Elizabeth Hamiltoune, Relict of John Kirkaldie

Date: 28 November 1649

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In the process pursued by Jean Boswell against Elizabeth Hamiltoune, relict of John Kirkaldie, for 300 merks addebted by the said John to the said Jean, as intromissatrix with her umquhile husband's goods and gear;—it was excepted, That there was an executor confirmed; and, suppose he died within two or three months thereafter, yet there was another confirmed, quoad non executa; being a creditor, who had obtained sentence against the relict for those goods intromitted with by her, and that before the intention of the pursuer's cause. But the Lords would have all the testaments, and decreets or other writs, produced: because that common exception is receivable, where executors, merely representing the defunct, are confirmed, and not a creditor; especially seeing the first executor was the defender's brother, and the second, John Kirkaldie his son or nephew; and it seems collusion for to purge the universality of intromission two three years after the said intromission.

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