Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 RIGHT IN SECURITY.
Subject_3 Whether a real security, as by adjudication, be diminished by a prior confirmation as executor-creditor?

Sir James Cockburn and Others
v.
John Tait and Others

1780. June 1.and 24.

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[Fac. Coll. VIII. 201; Dict. 14,110.]

President. The case of Auchinleck does not apply: the case of Crichen is nearer the present one; but that case was singular, and attended with many extraordinary circumstances. The rule jura vigilantibus subveniunt must be observed.

[Discovered that he was a party. Cause put off from 29th January.]

Covington. What difference does it make that there are two separate estates instead of one? If there had been two heritable subjects, and part of the debt had been drawn out of the one, still the creditor would have been ranked on the other for the whole debt.

On the 1st February 1780, “The Lords preferred the creditors, who either confirmed as executor-creditors within the six months or cited the executor confirmed.”

Act. J. Swinton. Alt. A. Elphinston. Reporter, Justice-Clerk.

February 24.—Braxfield. Confirmation is not equal to payment. Mr Tait lias L.1200 in his hands: Has he not got payment for himself?—as, according to his own argument, he may retain. But the other creditors have touched nothing, and therefore they may still attach the price of the heritable subjects.

Gardenston. The question is, Whether Mr Tait is a creditor who has drawn, or who has only a claim to draw? The value of the goods was deposited in the hands of Mr Tait as trustee, not as creditor.

Covington. Mr Tait confirmed the ipsa corpora for payment. This is a step of diligence which vests the subject in him.

Justice-Clerk. I cannot distinguish between Mr Tait and the other creditors, for whom he is either actually trustee or held as trustee by the act of sederunt. There was nothing to have hindered the creditors who had attached the moveables to have divided the price, even before the price of the heritable subjects was divided. For conveniency, it happens that all is divided at one time: in that case it is certain that the creditors could only have drawn proportionally to their balance out of the heritable subjects.

Braxfield. There is a difference between confirmation of corpora and nomina; for nomina is not money until payment, whereas estimated corpora is. I have doubt how far creditors, who have only right by citations, can be said to have received payment; for, if Mr Tait were to become bankrupt, the creditors for whom he appears would still have their full claim of debt.

Covington. This is raising a question upon a species facti which does not exist.

On the 24th February 1780, “The Lords found that Mr Tait, and the other creditors for whom he acts, can only be ranked upon the price of the heritable estate for the balance remaining due to them, after deducting what they have recovered out of the executry-funds;” altering their interlocutor of ---.

Act. Ilay Campbell. Alt. A. Elphinston. Reporter, Justice-Clerk.

Diss. Gardenston.