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?
James Spence v. William Wilson and Others, the Creditors of Alcorn
Date: 20 February 1751 Case No. No. 39.
The nearest if kin obtaining payment of a debt due to a defunct, has right to it, being confirmed.
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John Barclay, smith in Musselburgh, was creditor to Mr. Henry Alcorn by bond; and Jean Cruickshanks disponed to James Spence, writer in Edinburgh, her husband, all bonds that should be found to pertain to her, as executor nearest of kin to be confirmed to the said John Barclay, her grandfather then deceased. James Spence obtained her decerned executor, and insisted before the magistrates of Edinburgh against James Alcorn, heir to the debtor, for payment, and inhibited him; whereupon he granted his bond corroborating the debt. The magistrates decerned, and James Spence adjudged on the constitution, without mentioning in his decreet the corroboration; but there was not any confirmation expede.
Other creditors, posterior to the inhibition, adjuged; and, in the competition, the Lord Ordinary, 10th January, 1750, “Found, that the decreet of constitution at the instance of Jean Cruickshanks, and James Spence her husband, and the decreet of adjudication following thereon, were void and null, for want of a sufficient title in the person of Jean Cruickshanks, to the sums therein mentioned; and therefore preferred the said William Wilson and the other adjudging creditors, as they should be ranked.”
Pleaded in a reclaiming bill, as the executor decerned was entitled to pursue for recovery of the debt, so she had right to raise any diligence competent upon a dependency; and if the decreet pronounced is valid, the diligence will be effectual to her: That she was not confirmed was an exception competent to the defender; but if he did not make it, the decreet was not null, which decerning the debtor to pay to her, fully vested her with the right.
2dly, An executor obtaining possession of the defunct's effects, need not confirm, as was found 14th November, 1743, Mary M'Whirter contra Edward Millar, No. 38. p. 14395. Payment would therefore have been good; consequently she might have discharged the debt, and taken a new bond, and the bond taken is not the worse that the old debt was kept up. Thus the executor's right was completed by possession, and the decreet rightly given.
Answered, The deereet of constitution was null for want of confirmation, if the pursuer's title was not otherwise complete, for the decerniture to pay could not vest the right: The possession of moveable subjects has been held to vest a right, but this has net been, extended to debts.
The Lords found the pursuer had sufficient right to the debt, notwithstanding that there was no confirmation expede, and sustained the diligence.
4th June, 1751, A bill, as without the days of reclaiming, was refused.
Act. Brown.Alt. Macdowal.Gibson, Clerk.
Fol. Dic. v. 4. p. 269. D. Falc. v. 2. No. 201. p. 248.*** This case is also reported by Kilkerran:
It was found in the case of Mary M'Whirter, No. 38. p. 14395. that a nearest in kin attaining possession of moveables, the right thereto eo ipso transmits without confirmation; but what should be the case of a nearest in kin's obtaining payment of a debt, without confirmation, was left entire till the point should occur, which it did in this case, which was as follows:
Jean Cruickshanks, in her contract of marriage with James Spence, assigned him to two bonds that were due to John Barclay, her deceased grandfather, by Mr. Henry Alcorn, in the year 1684 and 1685. In order to make up a title thereto, Spence executed an edict for confirming her and himself for his interest therein; and accordingly she was decerned executrix-dative, qua nearest in kin to her grandfather.
A process upon the passive titles was brought before the bailies of Edinburgh against James Alcorn, the grandchild and heir of the debtor, and thereupon inhibition followed against the said James, who, being conscious of the justice of the debts, granted bond of corroboration thereof to the pursuer. Notwithstanding this, the pursuer proceeded in his process; and the bailies, upon advising the whole, found the libel proved, and decerned. Upon which decree, the pursuer obtained adjudication of certain lands and tenements against the said James Alcorn; and, upon the title of this adjudication and inhibition, pursued a reduction against several persons, pretending right to the subjects adjudged, some as purchasers, and others as adjudgers from the said James Alcorn.
And it being alleged for the defenders, that both inhibition and adjudication were null, as proceeding upon a decree of constitution which was null, in respect that Jean Cruickshanks had not completed her title by confirmation before extracting the decree; and that this defect could not now be supplied after the death of Jean Cruickshanks, the Ordinary found the decree of constitution null, and preferred the defenders.
But the case being brought before the Court by a petition, the Lords, upon advising petition and answers, “sustained the pursuer's title.”
It was in the reasoning supposed, that as the nearest in kin obtaining possession of moveables needed not confirm, so a debtor voluntarily paying to the nearest in kin will be effectually discharged by him, though the nearest in kin have not confirmed the debt; and all the doubt was, if a bond of corroboration would supersede confirmation. But it was found that it did, upon the answer made, that if the nearest in kin could take payment and discharge, he could no doubt give up the old bond and take a new one from the debtor; and if so, there could be no reason why a corroboration should not have the same effect to establish the debt in his person, which, in respect of circumstances, it might be reasonable for him to take, rather than give up the old bond.
