Where the executor has been confirmed. - Where the party died at the horn:
Marjory Gray v. Dalgardno
Date: 7 February 1662 Case No. No 169.
It is no defence against vitious intromission, that the intromitter died at the horn, because his moveables are still liable to the diligence of his creditors, unless there be a general declarator or the gift.
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Marjory Gray pursues Dalgardno, as vitious intromitter with the goods of a defunct, to pay his debt, who alleged, Absolvitor, because the defunct died rebel, and at the horn, and so nihil fuit in bonis defuncti; seeing, by the, rebellion, all his moveables belonged to the fisk, ipso jure, without necessity of tradition, for the King, jure coronæ, hath the right of lands without infeftment, and the right of moveables forfeited, or fallen in escheat, without tradition or possession. The pursuer answered, Non relevat, because the defender intromitting without any warrant from the fisk, is quasi prædo, and moveables are not ipso facto in the property of the fisk by the rebellion; but, if they be disponed by the rebel for an onerous cause, the disposition before rebellion will be valid; or, if they be arrested for the defunct's debts, and recovered by sentence, making furthcoming; or, if a creditor confirm himself executor-creditor to the defunct rebel, he will be preferred to the fisk; by all which it appears, that the rebellion transmits not the property. The defender answered, That these instances do only show that the King prefereth creditors, and takes but the benefit of what the rebel had deductis debitis, or what was contracted with him bona fide, but doth not say, that the property of the goods was not in the fisk, but in the rebel.
The Lords repelled the defence. The defender further alleged, That not only was the defunct rebel, but that he had a gift of his escheat. The pursuer answered, Non relevat, unless it had been before the vitious intromission, or at least ante motam litem.
The Lords repelled the defence, unless the defender would allege that the gift was ante motam litem; for they thought, that the taking of the gift was like the confirmation of an executor, which purged vitious intromission, being ante motam litem.
1662. February 27.—Marjory Chalmers pursues William Dalgardno, as vitious intromitter with a defunct's goods, to pay his debt, who alleged, Absolvitor, because the rebel died at the horn, and so had no goods; 2dly, The defender hath the gift of his escheat, and also is executor-creditor confirmed to him; 3dly, The defender had a disposition of all the defunct's goods, albeit he possessed not thereby during his life, yet he might enter in possession after his death, and not be vitious intromitter.
The Lords found this defence relevant to elide the passive title, but prejudice to either party to dispute their right as to the simple avail of the goods; and they repelled the first defence, and found the second and third defences relevant only if the gift was before the intenting of this cause.
