Vitious intromission sustained against a party who had deponed that he bought goods belonging to a defunct, within ten days of his death, from his son-in-law, who had a disposition thereof, in respect the disposition was not produced.
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Irvings having pursued Kilpatrick for vitious intromission with the goods of Johnstoun of Clacharie, for payment of a debt due by Clacharie, this defence was found relevant, that Kilpatrick had bought certain goods from Craik of Stewartoun, who had disposition thereof from Johnstoun of Clacharie, and had paid the same accordingly. At the advising of the cause, the disposition of the moveables by Clacharie to Stewartoun was not produced, but Kilpatrick deponed, that he had bought several goods from Stewartoun, who had intromitted with Clacharie's goods, and that he had bought the same within ten days after Clacharie's death; whereupon it was alleged, That Kilpatrick ought to be decerned, because he produced not the disposition conform to the act and by his oath acknowledged that he had intromitted with the defunct's goods and he could not pretend that he had bought them bona fide, having deponed that he bought them within ten days of Clacharie's death, from Stewarton, who had intromitted with Clacharie's goods, and therefore it has been a mere collusion, Kilpatrick having married a daughter of Clacharie's; and though buying bona fide in a market, or otherways, may secure a stranger, yet that cannot secure this defender. It was answered, That the alleging upon the disposition was ex superabundante, and the oath is sufficient to clear against vitious intromission, at least to restrict it quoad valorem.
Yet the Lords found the defender liable simpliciter, as vitious intromitter.
