Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

Campbell
v.
Hart

Date: 16 December 1755

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

Archibald Hart, merchant in Edinburgh, was creditor to one Alexander, a pedlar, who dealt in trinkets and things of various kinds, in the sum of L.140; and upon the death of this Alexander he applied, by petition to the Commissaries of Edinburgh, to have his effects inventaried, valued, and sequestrated: which accordingly was done. The goods were valued to the sum of L.207, and locked up in a house, the key of which was given to James Smith, an officer of the Court. After this Hart, in order to secure his payment and prevent the diligence of other creditors, entered into a combination with the wife of this Alexander, and, upon her granting an obligation to pay him and some other creditors, allowed her to get the key from the said Smith, without any warrant of Court or order of law, and to sell and roup the goods, by which means Hart and two or three more of the creditors got their payment. After this, other creditors of the defunct, to the value of L.90, having confirmed themselves executors to the defunct, brought their action against Hart, and the other creditors who had got their payment in manner above-mentioned, as vitious intromitters; and the Lords found they were very vitious intromitters, having got themselves preferred by very undue means, namely, by taking the goods out of the hands of the Court where they were sequestrated, in a clandestine way, without warrant or authority; and therefore, though they were not for carrying the vitious intromission the length of an universal passive title, according to the doctrine of the old law, yet they thought that it should at least subject them ad valorem; and so they found them liable to the pursuers for the L.90,—by this means making them last instead of first, which they intended to have been, by their irregular intromission. Dissent. tantum Bankton and Auchinleck, who wanted to bring them all in pari passu.