Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 EXECUTOR.
Subject_3 Right of the Executors to have part of the Effects confirmed, though the whole are inventoried and appreciated.

Mary Nasmith
v.
The Commissaries of Edinburgh

Date: 12 February 1778

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[Faculty Collection, VIII. 26; Dictionary, 3918.]

Covington. It is decided that the commissaries cannot compel any one to confirm, or to confirm more than he inclines. I do not think that the circumstances of the inventories and appreciation can take this case out of the general rule.

Braxfield. The doctrine of the commissaries is just to bring back the law to what it was before the 1690. Formerly the commissaries got the goods of defuncts into their possession under the pious pretence of securing them for the behoof of heirs and creditors. They could compel universal confirmation, and even appoint their own fiscal to confirm, and exact a quot. This was the very thing which the statute 1690 meant to rectify. If the goods are once in the possession of the court, there is reason that the commissaries should exact the dues of Court, as to what is in the hands of the Court; but that is not the case here.

Gardenston. I can discover no difference between this case and that of the commissary of Murray. The appreciation was a proper measure, to satisfy all persons concerned; but it did not place the subjects in the hands of the court, and therefore does not vary the case.

On the 12th February 1778, “The Lords remitted to the commissaries, with an instruction that they admit the confirmation, as offered;” altering the interlocutor of Lord Auchinleck.

Act. Ch. Hay. Alt. A. Murray.