Scottish Court of Session Decisions

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.

Hope, Stewart, &c Creditors of Muirhead of Steinson,
v.
The Earl of Orkney and Hamilton of Wishaw

Date: 8 November 1710

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The Lord Dun, Probationer, reported Hope, &c. against the Earl of Orkney and Colonel Hamilton. Muirhead of Steinson having died in Flanders in 1706, the Earl and Colonel, as his superior officers, intromitted with his money and effects. Hamilton of Wishaw, being creditor to him, takes out letters of admilustration from the Prerogative Court in England, and thereupon obtains payment of his debt on that title, from the Earl and his Colonel. Bailie Hope, As-cog, Blantyre-farm, and other creditors to the said Muirhead, confirm themselves executors-creditors to him by the Commissaries of Edinburgh, and then pursue the Earl as intromitter with their debtor's effects. The defence was, bona fide payment made long before your citation; and it is against natural equity bis idem exigi.

Alleged,—There can be no bona fides in this case, wanting both its necessary requisites, viz. probable ignorance on the payer's side, and a colourable title on the receiver's, none of which is to be found here; for it is a Scotsman, not dying in England but in Flanders, having no effects in England but with himself. The intromitters are Scotsmen, and so is Wishaw, the obtainer of the payment; so there is not so much as the shadow of a pretence to found a title, by an English administration, for uplifting the money, it neither being locus originis domicilii nee mortis: but the Commissaries of Edinburgh, as the communis patria to all Scotsmen dying abroad, were the only competent judges thereto. 2do, Esto their Prerogative Court had been a, forum competens, yet voluntary payment was both collusive and unwarrantable, there being neither judgment, decree, nor sentence obtained against them; so that the other creditors in Scotland could never come to the knowledge of such a contrivance. And this would defeat that excellent Act of Sederunt in 1662, bringing in all creditors confirming within six months to be pari passu.

Answered,—Whatever defect there may be in the payment, it is always relevant to assoilyie the defenders against the odious claims of double payment, and sufficient to assoilyie the Earl, reserving their recourse of repetition against Wishaw, the administrator, who received it. 2do, Though he was a Scotsman, yet he was received into an English regiment, and so incorporated into their privileges: likeas, the Earl has his lady and family in England, and has no residence nor domicile in Scotland; and so it was competent to make up the title where he dwelt. And 1. 23 D. ad municipal, says,—Miles ibi domicilium habet ubi stipendium maret. Some make it the place where he dwelt ante militiam vel expeditionem ab eo susceptam.

The Lords superseded to determine the Earl's bona fides in paying, till Wishaw the administrator should be brought into the field, to defend himself, which would lay the whole matter entirely before the Lords; but allowed Wishaw to be heard, whether he be obliged to answer summarily, being called incidenter; though the Lords have frequently allowed those citations incidenter arising from another process.

Vol. II. Page 596.