Sir William Johnston of Westerhall v. James, Marquis of Annandale
Date: 7 January 1725 Case No. No 3.
A party received a mandate to raise money for the expenses of a funeral. Found, that his claim for reimbutsement out of the executry was no better or more privileged than it would have been in the person of the mandant, against whom there might have been exceptions.
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Sir William was prevailed upon, at the request of the Marchioness of Annandale, and other friends of the family, to undertake the management of the late Marquis his funerals, and received from the Marchioness (who was the executor nominate) a mandate authorizing him to raise what money should be necessary for defraying the charges of the funerals, and she thereby promised to indemnify him for the same.
In consequence of this mandate, Sir William drew bills on the factors on the estate in Scotland, who advanced sums for the said purpose out of the bygone rents then in their hands.
The present Marquis being confirmed executor-creditor to his father in Scotland, pursued the factors and Sir William to account for said sums; and Sir William insisted in a counter-process, for constituting the funeral expense, and for having it declared, That the sums advanced by the factors should be sustained as articles of discharge to them, in regard of the privilege due by law to funeral debts, in preference to all other personal debts.
It was pleaded for the Marquis, That however a funerator was privileged by law for his claim of what is impended on the funerals of a defunct when he trusts to that privilege, yet when the funerator takes himself to another security, and does not rely upon that of the law, as, in this case, where he accepts of a mandate from another, though the mandant may have the privileged action, yet the acceptor of the mandate has no title to it; and if Sir William does insist in the right of the Marchioness his constituent, he can be in no better case than if she were pursuing, against whom the defence would be good, that intus habet by a large and free executry which she intromitted with in England.
Answered for Sir William, That though by the principles of the civil law he might not have the personal action ex negotio gesto, against those who were obliged to funerate, yet as to the real security in the defunct's effects, and jus prælationis on them, that being privilegium rei without any transmission by the mandant, it was competent to him, as furnisher towards the funerals; and his taking a mandate by way of a collateral security, could never deprive him of the preference he had by law in the defunct's effects, Voet, Tit. De religiosis et sumptibus funer. § 10.
The Lords found, That Sir William having accepted of a mandate from the Marchioness, could be in no better case than if she were a party.
Reporter, Lord Dun.Act. H. Dalrymple, sen. & Ja. Johnston.Alt. Ch. Erskine.Clerk, Mackenzie.
Fol. Dic. v. 3. p. 397. Edgar, p. 144.
