Click here to view a pdf copy of this documet : PDF Copy
Stevenson being surrogated executor-dative, ad omissa, and having licence to pursue, insists against Crawford for a debt of the defunct's, alleged omitted forth of the principal testament. The defence was no process, until the executor-dative ad omissa be confirmed; but he cannot insist upon a licence to pursue, because the principal executor having made faith, that the inventory given up by him, is a full inventory. Any that crave to be dative ad omissa, are never admitted, but upon certain knowlege, and so must confirm, and get no licence.
The Lords repelled the defence, especially seeing the pursuer was a creditor.
Stair, v. 1. p. 292.*** Newbyth reports this case:
James Stevenson and Patrick Watt, as executors, decerned ad omissa to umquhile William Stevenson, procurator before the Commissaries, and having licence to pursue, pursue James Crawford for payment of the sum of £.2154. conform to his ticket. The pursuer's active title as executor ad omissa, and having licence to pursue, being quarrelled, that licence ought only to be granted to executors principals, and not to ad omissa, the Lords sustained no process upon the licence produced, and whereunto the executor principal was not called.
Newbyth MS p. 31.
* * This exactly copied from the MS. but probably the word no is erroneous, being contrary to the other reports of the same case.
*** Gilmour also reports this case:
In a process at the instance of James Stevenson and Patrick Watt, as executors ad omissa decerned to umquhile William Stevenson, and having licence, the licence being quarrelled as not sufficient to furnish a title for a process, without a confirmed testament-dative;
The Lords sustained the same, in respect they were decerned though not confirmed; to which decreet-dative the executor-principal was called, who had the only interest to quarrel the dative, and that before sentence the debt must be confirmed.
