Scottish Court of Session Decisions

Subject_1 EXECUTOR.

Cornett Ogilvie
v.
Matthew Steavart

1737, July 5.
Case No. No. 3.

Effect of a military inventory in terms of the articles of war.

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Upon the death of Captain Maxwell in England, Major Stewart, pursuant to the articles of war, (art. 43) inventoried and took possession of his effects, particularly of a promissory-note of Cornett Ogilvie's of L.100 sterling, and paid the funeral charges, L.57 sterling. The nearest of kin in Ireland renounced the office of administration in favour of Nicholas Scott, at London, a creditor, who thereupon got letters of administration, and to whom Cornett Ogilvie paid the L.100. The nearest of kin then confirmed in Scotland, and in concert with Major Stewart's son, who was still possessed of the note, sued Cornett Ogilvie. The Lords first demurred whether the articles of war did not give Major Stewart a preference even to the administrator; but the difficulty was removed, and the Lords thought that the Major had not the jus exigendi to recover debts; and they found, 1mo, That the nearest of kin having renounced the office in England, neither she nor Stewart have right to sue for payment of this note; 2do, They sustained the discharge by the administrator, reserving Stewart's action against the administrator in England as accords, notwithstanding some suspicions of collusion objected to that discharge.