Scottish Court of Session Decisions

Subject_1 SERVICE AND CONFIRMATION.
Subject_2 SECT. V.

Whether requisite where the Subject is in the Possession of the Heir or Executor? - Whether the Father's Possession the same with the Childs?

Elizabeth Dickson, Spouse to Patrick Heriot, Merchant in Fisherrow,
v.
Mrs Isobel Logan, relict of Mr John Dickson

1711, November 22.
Case No. No. 36.

A general assignation omnium bonorum, found a sufficient right to retain moveables in the assignee's custody, without necessity of confirmation, in a competition with an executor decerned, who had a license to pursue, but had not confirmed.

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In the process at the instance of Elizabeth Dickson, as executrix decerned to Mr. John Dickson her brother, and having a licence to pursue, against Isobel Logan his relict, for exhibiting some of her husband's moveable effects in her custody, that the pursuer might make up inventory and confirm,

Alleged for the defender: She cannot be obliged to exhibit and deliver the goods, because she hath a general assignation from the defunct to all moveable goods and gear that should belong to him the time of his decease, which, though not good, without confirmation, to recover the subject from a third party by way of action, is good for retaining what the assignee hath in her proper custody; as in an action upon the passive titles, it is a relevant defence, if the goods be in the hands of a third party, that the escheat is gifted and declared; but it sufficeth for the defender, if they be in his own custody, to say, that the escheat is gifted, though not declared; in which case possession of the goods supplies the want of a declarator, as it doth here the necessity of a confirmation. Nor can the pursuer obtrude to the defender the want of confirmation, seeing the former cannot have decreet against the latter until she herself confirm the same goods as executrix for the interest of all parties; and both cannot confirm the same subject. Now though the pursuer had confirmed and were in possession, the defender would oblige her to restore them; and frustra petitur quod mox est restituendum, which is a good defence in all cases except a spuilzie.

Replied for the pursuer: The Act 26. Sess. 2. Parl. W. & M. declaring special assignations not intimated or made public in the cedent's lifetime to be good and valid rights to possess, pursue, or defend, without confirmation, implies that a general assignation can be no title to defend or pursue; casus omissus being held pro omisso. And if a general assignation were a sufficient right to retain, the defunct's means and estate might be huddled up to the prejudice of creditors.

The Lords found, that the defender, by virtue of the general assignation, had right to retain the moveables that were in her own custody without necessity of a confirmation; the pursuer being only executrix decerned with a license to pursue, and not having confirmed the goods.

Fol. Dic. v. 2. p. 396. Forbes, p. 546.