Scottish Court of Session Decisions

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

Sir John Whytfoord of Milnetoun,
v.
James, Bishop of Galloway, and Claud Hamilton of Parkhead

1670. February.

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Sir John Whytfoord of Milnetoun, pursueth James Bishop of Galloway, and Claud Hamilton of Parkhead, his brother, upon all the passive titles, as representing their father, Sir James Hamilton of Broomhill, for a debt owing to his father (to whom he is served and retoured heir,) by the said Sir James. The said two defenders having received dispositions from their father of some lands, after the contracting of the debt now pursued upon; my opinion was asked, Whether or no accepting of the said dispositions would be sufficient to make any of them successor titulo lucratvo post contractum debitum? I answered not, for two reasons, the first was, that I was well informed that any lands either of them had by disposition from their father, was with very great burden of his debts, and so they could never be reputed to have got them ex causa lucrativa. But the second was an answer in jure, and unanswerable, viz. that they were not persons that could be convened as successors by a lucrative title after contracting of the debt, which passive title only adequately quadrates to those who are alioqui successuri to the disponers, such as neither of thir defenders were; they having an elder brother, viz. my Lord Belhaven, who could only be heir, and succeed as heir to their father; for this passive title can in reason be no farther extended against a man than if he were really entered heir, and therefore cannot militate against him that is not heir to the disponer: nam absurdum esset fictionem plus operari posse in casu ficto quam operatur veritas in casu vero. Yet the Lords have sustained this passive title against the eldest son of the apparent heir, receiving disposition of lands after the debt from his goodsire, though he be not persona immediate success sura; and that because, by the course of law, he is alioqui successurus necessarie, though not immediate. It is likewise required, that the person who is liable to this passive title, be apparent heir, and alioqui successurus necessarie; and not immediate apparent heir probabiliter tantum et pro tempore: as a disposition by one brother, having no children at the time, to another brother, (who so is his apparent heir,) will not infer this title, because the brother is not alioqui successurus necessarie by the course of law, quamdiu liberi sunt in spe. (Vide infra, February, 1674, No. 444.) And therefore I thought that the foresaid defenders could not be overtaken on that head, but that the pursuer's best course would be to pursue actione rescissoria Pauliana, Eorum quae in fraudem creditorum; or reduce upon the 18th act of Parliament in anno 1621, ordaining all dispositions posterior to the debts of lawful creditors, and made to conjunct and confident persons, without a just or onerous cause, or any true and competent price paid therefore, to be reduceable and annullable at the instance of any anterior creditor.

This cause being called, and the pursuer insisting against the defenders aforesaid as vitious intromitters, I replied, Ought to be repelled, for Parkheid, because I offer me to prove executor creditor confirmed, before the intenting of your cause.

Whereunto it being duplied upon superintromission, I triplied that the said superintromission (unless the pursuer would say it was fraudulent, and before the confirmation,) cannot be received here by way of exception, but requires a new process, or a dative ad omissa, which the pursuer may take. Vide Dury, 28th March, 1632, Maxwell.

Notwithstanding, the Lords found the duply upon superintromission relevant, and assigned him a day for proving thereof, and that same day to me to prove executor creditor.

As for the Bishop of Galloway, I alleged, that there being an executor confirmed, viz. Parkheid, esto he had vitiously intromitted, that was enough to purge the same, and make him allenarly countable to the executor. Which was found relevant by the Lords.

Advocates' MS. No. 8, folio 71.