Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.

Robert Bruce
v.
Anna Douglas, Relict of Sibbald of Kair

Date: 20 December 1677

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In the action pursued by Robert Bruce against Anna Douglas, relict of Sibbald of Kair, where he pursues, as executor-dative ad omissa, her as executor-principal, as intromitting with the goods omitted by her and confirmed by him: she cannot object against the grounds of the debt, but must do it by way of reduction of the decreet-dative, unless the executor be confirmed qua creditor; and then they have interest to object, why their super-intromission cannot be questioned, unless, you will say, they are more than paid. Yet they are vitious intromitters, even as to that superplus, for they want a title; since they should have eiked it to the principal testament, and not have suffered another to have taken a dative ad omissa.

In this cause there was occasion to propone, on the Act of Parliament in 1670, that the bond was prescribed quoad modum probandi, being holograph; item, on the axiom quod debitor non prcesumitur donare. See the informations.

Advocates' MS. No. 696, folio 313.