Where the executor has been confirmed. - Where the party died at the horn:
Ramsay of Cairnton v. Carnegie of Phineven
Date: 2 February 1697 Case No. No 171.
Found in conformity with Johnston against Ker, No 166. p. 9848.
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Crocerig reported Ramsay of Cairnton against Carnegie of Phineven, for payment of a debt due to him by Kinfawns, with whose moveables Phineven intromitted. Alleged, Any intromission he had was as tutor to his brother's daughter, and who was executrix confirmed qua creditrix on her bond of provision to her father, which was sufficient to purge an odious passive title of vitious intromitter. Answered, The defence ought to be repelled, because he offered to prove the intromission was prior to the confirmation, and the goods and plenishing so intromitted with were never confirmed, but a sham-confirmation of some other particulars made up; so that here was not only a vitious super-intromission, but likeways a fraudulent omission and concealment, which, by the principles of law and reason, must make him passive liable to the whole. Replied, Any intromission made prior to the confirmation was necessary; and the new act of Parliament 1696, declaring that the confirmation of an executor-creditor shall not defend another intromitter farther than the subject confirmed, shews it was a total exception before that act.—The Lords having considered the tract of decisions, that fraudulent concealment inferred this universal passive title, and that a dative ad omissa was only allowed to make them liable in quantum the value of their intromission extended, if it was not omitted dolose; therefore they found it relevant to make him liable passive; especially seeing it was offered to be proven, that he had raised his process, and used citation before the confirmation, though after the decerning him to be executor; though the intervening of a creditor's citation betwixt the two, if there were not a considerable distance of time, or delay in confirming after the obtaining themselves decerned, would not be much regarded; yet here the Lords found Phineven in this case a vitious intromitter. See 13th February 1627, Kneeland contra Bailie's Relict, No 167. p. 9848.
Fol. Dic. v. 2. p. 42. Fountainhall, v. 1. p. 762.
