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Marquis of Tweeddale v The Relict and Children of Robert Dempster, his Chamberlain. [1697] Mor 9852 (17 February 1697)
URL: http://www.bailii.org/scot/cases/ScotCS/1697/Mor2309852-172.html
Where the executor has been confirmed. - Where the party died at the horn:
Marquis of Tweeddale v. The Relict and Children of Robert Dempster, his Chamberlain
Date: 17 February 1697 Case No. No 172.
Found in conformity with Johnston against Ker, No 166. p. 9848.
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In the Marquis of Tweeddale's pursuit against the Relict and Children of Robert Dempster, his chamberlain, for clearing his accounts; alleged, Absolvitor, because she was executrix confirmed qua creditrix upon her contract of marriage. Answered, This could not purge the passive title o vitious intromitter, because they offered to prove super-intromission. Replied, That could only make her liable in law to any who should take a dative ad omissa, but could not infer an universal passive title.——The Lords thought her defence good, if the super-intromission was subsequent to the confirmation; for that would only infer restitution of the value; but, if it was prior, then the fraudulent concealment makes them certainly liable in solidum.
Fol. Dic. v. 2. p. 42. Fountainhall, v. 1. p. 767.
