Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER HOME, CLERK OF SESSION.

Competition, James Grant, &c with Robert Sutherland.

Date: 22 July 1737

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William Shaw, drover, having died in England, his son Robert intromitted with his effects; and in the year 1728, he gave in a petition to the Commissary of Inverness, acknowledging, That, after all deductions, there was L240 Sterling of his father's money still in his hands : on which the Commissary decerned him executor to his father. After this, he died before any confirmation was expede. Whereupon the said James Grant, &c. being creditors of William Shaw, applied to have Robert's repositories searched; that so the money, which he owned belonged to his father, might be secured for their behoof; but upon a search being made, there was only found L126, so that there was wanting L114.

As this was the fact, James Grant, &c. imagining that Robert's intromission with his father's effects made him liable to them to the extent thereof, applied to the Commissaries to be decerned executors qua creditors to him; who accordingingly decerned them executors, with license to pursue.

Upon this, Grant brought a process against John Mackay, who was debtor to Robert Shaw in L114, which was the precise sum wanting of the cash that Robert had acknowledged to be in his custody belonging to his father.

Robert Sutherland being also creditor both to William and Robert Shaws, was, upon a decreet he had obtained against Robert, confirmed, anno 1734, by the same commissary, executor-creditor to him, in the sum due by Mackay to Robert; and upon this title, he compeared in the above process, and craved to be preferred.

The grounds upon which Grant, &c. founded their preference were, their being decerned executors-creditors to Robert, as early as the 1728, with a license to pursue: and, upon that title, having brought this action, they ought to be preferred to Sutherland, whose confirmation is dated only in the year 1734; which could not regularly have been granted to their prejudice, who were decerned executors so long before, without being called to that second confirmation.

Answered for Sutherland,—When he confirmed the subject in dispute, all the creditors of Robert were then called edictally, as the law requires; consequently, so were his competitors, if they are creditors of Robert; which, it was contended, they were not. 2do, Granting they were creditors to Robert, he knows no law to hinder him to confirm any subject of his debtor's not yet confirmed ; as he takes it for a principle, that, after the lapse of six months from the debtor's death, it is confirmation only, and not a license to pursue, that gives the preference. 3tio, His competitors have no proper right in their person, whereon they could be decerned executors-creditors to Robert; because they were not creditors to him, but to William his father; of course, they could no more confirm themselves executors-creditors to Robert, than they could have confirmed themselves executors to any debtor of the father's, without previously constituting the debt against such debtor's representatives: therefore, he should be preferred, as being the only proper creditor of Robert who has made up a complete title to the sum in question.

Replied,—Though it may be true, that, if a person decerned executor with a license, does not prosecute his right, the commissary may confirm another ; yet this cannot be done, until the person first decerned be called; because a right is not to be taken away, parte inaudita. And as to the allegeance, that the pursuers have no proper right in their person, whereon they could be decerned executors to Robert; it was answered, that they are not bound to enter into the dispute, whether the commissary did right or wrong in giving them that title; as it surely excluded any after-confirmation till it should be altered by the judge. 2do, It is alleged without ground, the pursuers are not creditors to Robert; for although it be true, that they were not originally creditors to him, yet they became so, by his intromission with his father's effects, whereby he represented him in valorem. See 26th December, 1705, Dickie. And as to the supposition, the pursuers could no more confirm to Robert, than they could to a debtor of the father; it has no affinity with the present question; seeing the difference lies here, that a debtor to the father is not debtor to his creditors : but, in the present case, Robert, by his intromitting with his father's effects, and disposing upon part thereof, thereby represented him ; and so in tantum, became debtor to his creditors.

The Lords preferred Robert Sutherland.

No. 70. page 116.