Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES FERGUSON OF KILKERRAN.

Brown of Mollans
v.
The Creditors of Maxwell of Newlaw

Date: 7 June 1737

Click here to view a pdf copy of this documet : PDF Copy

In the ranking of the creditors of Newlaw, it appeared that Brown of Mollans had right to two adjudications against the estate, the one of which had been led by one Robert Bowis, and the other by Maxwel of Munchies. Brown having made a claim to be ranked under these adjudications, objections were stated to both of them on the part of the other creditors.

To the adjudication by Bowis, it was objected, that the decreet of constitution had been obtained against a minor, without proof of the passive titles, neither libelling on, nor bearing production of letters of general charge; and that though some others of the passive titles are libelled, none of them were proved, and therefore, that the decreet of constitution is funditus void, as being without proof.

In support of this adjudication, it was

Pleaded by Brown, 1mo, That there was now produced the letters and execution of general charge, of date prior to the decree of constitution, so that there was sufficient reason to conclude that the omission to mark the production of them, arose from a neglect of the extractors. 2do, Supposing the passive titles were not proven in the decreet of constitution, this ought not, in the circumstances of the case, to import a total nullity of the diligence.—The fact was said to be, that when the adjudication was led, other adjudications had gone out some months before ; and that Bowis, the creditor by whom the suit in question was led, being in danger of being cut out of the pari passu preference, applied to the Court, representing the hazard he was in, whereupon their Lordships authorized the Ordinary to decern in the constitution. Supposing, therefore, no proof to have been brought of the passive titles, previous to the decree of constitution, it was still competent to support the decreet by such proof.

Answered by the creditors,—As to the first argument, it is impossible to say-that the decreet of constitution could be founded on the general charge now produced, since it is not only not produced in the constitution, but it is not even mentioned in the libel, or in the decreets. As to the second argument, it is not competent now to bring a proof of the passive titles, after the defender is dead, to support a constitution and adjudication deduced above 30 years before.

Lord Newhall, Ordinary, found that the constitution being against an infant, and no proof being led therein of the passive titles, nor so much as a general charge to enter heir therein produced, that the said decreet was null; and that though the letters of general charge and execution are now produced, the same does not supply the defect; and, therefore, that the adjudication following on the said decree, was simply null, and could not subsist, even for a security.

To this interlocutor Lord Haining, before whom the case was afterwards pleaded, adhered.

But, upon advising a petition and answers, “The Lords found, that the general charge not being libelled on, could not be pled upon in support of the decreet of constitution ; but in respect the decree passed on a special warrant, in order that the pursuer's adjudication might come within year and day of a former adjudication, allowed Mollans to bring a proof of the other passive titles libelled, to support the decreet of constitution.”

To the adjudication by Maxwell of Munchies, it was objected, 1st, that though in the summons of adjudication, the letters of special charge are expressly libelled on, yet the decree does not bear production of them in the proper place. 2idly, That as these letters of special charge are narrated in the decree itself, they do not appear to have been executed against the tutors and curators, but only against the minor.

In support of this adjudication, it was

Pleaded by Brown, in answer to the first objection, that the letters of special charge are not only expressly libelled on, but the decree itself bears that they were produced, and also that executions of the same were produced. As to the second objection, although it is not expressly stated in the decreet that the letters of special charge were executed against the tutors and curators, yet the presumption is quod omnia erant solenniter acta.

Answered,—The terms of the decreet afford no proof that the letters had been executed against the tutors and curators; and the maxim cited applies only to such formalities as are naturally presumed to be implied in every execution, and can afford no ground for presuming in a case like the present, that the tutors and curators of a defender were cited.

The Lord Ordinary “sustained the objection against the execution of the letters of special charge, as narrated in the decreet of adjudication, which does not bear they were executed against the minor's tutors and curators ; and, therefore, found the said decreet of adjudication null, in toto.”

But the Court altered this part of the interlocutor also,—“ As to the objection to the special charge, it was observed in the reasoning, that the production bore executions (in the plural) against the minor, which, by construction no way forced, might comprehend the execution against the curators ; and, upon the question put, to sustain the objection, to the effect to restrict or annull,—carried, by a narrow majority to restrict.—Royston, Minto, Elchies, &c. dissenting.”