Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
John Threipland v. Jean Anderson
Date: 13 February 1705
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Rankeillor reported John Threipland, late bailie in Perth, against Jean Anderson, relict of John Christie, tailor there. Christie being debtor by bond to Threipland in a certain sum, he pursues Anderson, his relict, as vitious intromitter with his goods, for payment. And though she produces a confirmed testament, as executrix-creditrix, on a debt of her husband to which she had purchased an assignation, he contended that ought not to defend her, because her intromission is immediately after her husband's death, and the buying in this extrinsic debt and confirming thereon is not till two years thereafter; and, that debt having no preference nor privilege in itself, the acquiring it was merely to palliate her vitious intromission.
Alleged for the relict,—That my confirmation being before the citation in your process, it has always been sustained to purge the passive title; and it is all one whether the confirmation be on her contract of marriage, or other debt due to her proprio nomine, or as assignee thereto; so there is neither fraud nor partiality, and the creditor was in mora that did neither confirm nor pursue sooner, but suffered her to confirm first.
Answered,—Her confirmation can never excuse her, because the debt confirmed might be a retired bond lying beside her husband with a blank assignation; and it is known that relicts have access to the defunct's papers. 2do, Her confirmation is fraudulent, for she omits £40 of lying money, and some other particulars; and the law is clear that such omissions make them liable, notwithstanding confirmation; so there is a plain dolus in not making a full inventory, and omitting her superintromission.
Replied,—If there were any omissions, the pursuer has a remedy and access in law by taking a dative ad omissa. And her not giving up that L.40 of lying money was not fraud, because the most part of it was expended in burying her husband, which was officium humanitatis, and could not carry a confirmation, but behoved to be instantly done; and so, her initium possessionis being necessary, there can be no doubt but it was warrantable; and what remained after his funeral being so small, it can never infer an universal passive title, but only make her liable in valorem of the L.20 remaining; which she is willing to make forthcoming. And this passive title being of the nature of a delict, any thing is able to excuse it; and it was so found, 6th November 1622, Dundas against Livingston, where a small intromission with a caldron, and lying in the defunct's bed, and eating at his table, were not found sufficient to infer this passive title.
Duplied,—The value of the intromission is not so much considered as the animus immiscendi; for justitia non consistit in quantitate; and, in a late case betwixt my Lord Yester and the Relict of Robert Dempster, his chamberlain, the Lords found her superintromission with some cart-wheels, though not worth L.30 Scots, made her liable, though she was confirmed executrix-creditrix. And, though she disbursed the funeral charges, yet she should have cognosced them by a decreet of constitution; otherwise, relicts will never want pretences brevi manu to intromit, and then apply it to funerals and the like; which is of dangerous consequence to all creditors: and the using a pair of pistols has been found to import a behaviour as heir.
The Lords here considered that the intromission was very small, and much of it applied to her husband's funeral and maintaining the family till the next term; and that the creditor was negligent, two years being elapsed before he intented his pursuit, and had suffered her to establish the title by confirmation before he interpelled her by citation; therefore, by a scrimp plurality of seven against six, they found her confirmation sufficient to purge the passive title, and found her only liable in valorem.
