Effect of diligence. - Effect of partial payment recovered before diligence or bankruptcy.
John Tait, and Others, v. Sir James Cockburn, and Others
Date: 24 February 1780 Case No. No 21.
Whether a real security, as by adjudication, be diminished by a prior confirmation as executor-creditor?
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Captain Adam Hay having died leaving very considerable debts, Mr Tait, and certain other persons, expeded confirmations of his moveables as executors-creditors; and his apparent heir brought and obtained decreet in a process of sale of his land-estate under the act of Parliament.
Afterwards, in framing the scheme of division of Captain Hay's funds, a doubt occurred, whether those creditors who had already attached the moveables by confirmation, were entitled to be ranked upon the price of the heritable estate according to their whole debts, or only for the balance that should remain after deduction of what was to be received from the executry. The point being debated in Court, it was
Pleaded for such creditors as had not confirmed; It is true, that when by adjudication a real lien is constituted upon an estate, such a lien will remain undiminished, notwithstanding partial payments, till the last farthing of the debt is paid. In that case, unaquæque gleba servit. Even securities affecting moveables, as arrestments, have a similar effect. But if the payments are prior to the adjudication, that diligence can surely comprehend nothing more than the balance then remaining; otherwise it would involve a pluris petitio, which would be fatal to the security.
Now though it be admitted, that the above-mentioned decreet of sale gives to creditors a real security equal to adjudication, still it is to be observed, that the confirmation in question was prior to this decree; and being a mode by which moveables are actually appropriated, it must then pro tanto have operated an actual extinction of the debt, Confirmation is aditio hæreditatis in mobilibus. But though that of an executor-creditor may be considered as a form of diligence; yet in this view likewise it must be allowed, like poinding, completely to transfer the property of the subjects confirmed, and to vest the creditor in them; who is only liable to render an account to the persons interested.
Answered for the creditors who had expeded confirmation; The idea of confirmation being aditio hæreditatis in mobilibus, corresponds not to the case of executors-creditors, whose confirmation gives no right to the succession of the deceased, and is merely a form of diligence established by law for the obtaining of payment. It is for this reason that different creditors may confirm the same subject, whilst it is impossible that there can be two heirs of one succession, without being heirs-portioners; Lord Bankton, B. 3. Tit. 8. § 65. Nor, though such a confirmation tended as completely as poinding to transfer property, are the funds in this case really carried away. They still remain in medio; as they must do, until, after many calculations, and the ranking of all the various debts, it shall appear what shares of them should be allotted to particular creditors.
At first, the Court found, “That the creditors who were confirmed executors were entitled to be ranked on the price of the heritable estate for their whole debts, without deduction of what they drew from the executry.” But, on advising a reclaiming petition and answers,
“The Lords altered that interlocutor, and found, That the creditors who had attached the executry could only be ranked on the price of the heritable subjects for the remainder of their debts.
Reporter, Lord Justice Clerk.For creditors confirming, Elphinston.Alt. Swinton, Ilay Campbell.Clerk, Tait
Fol. Dic. v. 4. p. 244. Fac. Col. No 107. p. 201.
