Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 SERVICE AND CONFIRMATION.
Subject_3 The Property established by the possession of a general Disponee unconfirmed, is limited to the Subject possessed.

Robert Richardson
v.
Archibald Shiells

Date: 19 February 1784

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[Faculty Collection, IX. 229; Dictionary, 14,377.]

Braxfield. The subject is plainly moveable. A right of retention does not make heritable. As to the titles by confirmation to Alexander Orr, the father, and the right of the factor on the subjects of Alexander Orr, the son; the son's right is a general disposition. A debtor, in such case, may safely make payment, but he cannot be compelled by a general disponee to make payment. The Act 1690 shows the difference of a jus ad rem and a jus in re. It was not the purpose of the Act 1772 to carry off the estates of bankrupt defuncts; for the Act of sederunt 1662 allows creditors to claim, and they will come in pari passu. The Act 1712 did not give more to the factor than what the bankrupt had himself. The act of sequestration will prevent the creditors of Alexander Orr from taking advantage of one another.

Justice-Clerk. The subject is moveable. The general disposition will not vest. My difficulty is as to the sequestration, which goes to the whole subjects that belonged to Alexander Orr, the father. Shiells was a party in the sequestration.

President. That is a mistake. Shiells was no party in the sequestration. It was obtained on the suit of Alexander Orr, the debtor.

On the 19th February 1784, “The Lords preferred Archibald Shiells, in virtue of his confirmation;” adhering to the interlocutor of Lord Kennet. And, 10th March, 1784, “adhered.”

Act. Ilay Campbell. Alt. W. Baillie.