Scottish Court of Session Decisions

Subject_1 EXECUTOR

Spence
v.
Creditors of Alcorn

Date: 20 February 1751
Case No. No. 20.

Corroboration held to be equal to payment, and to vest the debt without Confirmation.

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One being decerned executor qua nearest of kin to her grandfather, sued one of his debtors in two bonds, and used inhibition. The debtor corroborated the bonds, and the corroboration being produced in Court, she obtained decreet, and thereon adjudged, but neglected to confirm. In a competition of the creditors of that debtor, she and her husband were ranked and preferred on her inhibition and adjudication, which she conveyed to her husband; but before the ranking was finished the wife died, and the other creditors observing that there had been no confirmation, objected that both decreets were void, and that the husband's right was a non habente, and so Lord Minto, Ordinary, found. But on a reclaiming bill we unanimously altered, and sustained both the diligence and his right; and, as we had already found, that now since the act 1690, a nearest of kin's possession of corpora without confirmation vested the property; though we have not found that naked possession of a bond or bill vested the jus crediti in the nearest of kin, and it would be dangerous to find so, and make the right to debts uncertain, and to depend on parole evidence; yet we agreed that a nearest of kin might effectually discharge a debt without confirmation, and if he could, then a corroboration must be equally effectual; for if the wife in this case could validly have discharged these two bonds and innovated the debts, and taken a new bond in her own name, there eould be no reason why a bond of corroboration should not as effectually vest the jus crediti in her. Vide M'Whirter against Miller, 20th July 1743, and Bairds against Gray, 3d February 1744, voce Husband, and Wife. Vide No. 19.