Scottish Court of Session Decisions

Subject_1 PART I.

JURISDICTION.

The Lords of the Treasury and his Majesty's Advocate,
v.
Admiral Keith Stewart's Trustees, and Others

Date: 12 November 1799
Case No. No. 7.

Decree of constitution, for the purpose of being the foundation of adjudication, pronounced, reserving all objections contra executionem, in an action at the instance of the Lords of the Treasury, against the representatives and cautioners of a receiver-general, although the pursuers were insisting in the Court of Exchequer, in a previous action against them for the same debt.

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The Lords Commissioners of the Treasury, with his Majesty's Advocate as their attorney, raised an action before the Court of Session, against the trustees, the eldest son, and the cautioners of Admiral Keith Stewart, for the balance alleged to be due by the deceased as receiver-general of the land-tax, &c.

In the progress of the action, the pursuers stated its object to be merely to obtain a decree of constitution, upon which adjudication might be raised against Admiral Stewart's landed property in Scotland.

The defences were, 1mo, That by 6th Anne, C. 26. § 5, 6, 7, a debt due to the Crown can be sued for only in Exchequer; 2do, That the pursuers had raised and were insisting in a previous action against the defenders in Exchequer, which made the present action incompetent, on the ground of lis alibi pendens.

“The Lord Ordinary found, That, by the law of Scotland, and also by the act of the 6th of Queen Anne, C. 26. this Court is alone competent to the trial of any question concerning, or claims brought against, the heritable estate of a debtor to the Crown; and, in respect the pursuers’ counsel have limited the conclusions of their action to a decree of constitution, in order to found an adjudication of their debtor's heritable estate, and that the defenders have not shewn that they have yet paid, or accounted for the sums claimed by the pursuers, decerned against them conjunctly and severally, for the sums, principal and interest, conform to the conclusions in the second alter “native of the libel; reserving all objections contra executionem”

The defenders, an a reclaiming petition,

Pleaded, 1mo, The use to be made of a decree, when obtained, cannot confer a jurisdiction otherwise incompetent. A declarator of marriage or divorce, or a question strictly maritime, could not be brought before the Court of Session, in the first instance, although it were the sole object of the decree to obtain such diligence as can proceed from this Court alone. Upon the same principle, the present action is incompetent. By 6th Anne, C. 26. § 6, 7. debts due to the Crown can be sued for only in Exchequer; and as the forms and rules of the law of England, which are not presumed to be known in the Court of Session, prevail in Exchequer, there is more reason for excluding action on them here, than in the other supposed cases.

It is true, that by sect. 8. of the statute, debts due to the Crown can be made effectual against landed property, only according to the law of Scotland; but this is not inconsistent with the former; and, when the pursuers have constituted their debt in Exchequer, the petitioners will not dispute, that an adjudication for it will be competent only in this Court.

2do, At all events, the present action is precluded by the previous claim in Exchequer; 16th Jarnuary 1751, Bisset and Edwards against Groset, No. 78. p. 7341.

Nor does the reservation of objections contra excutionem remove the defences. Decrees with such reservations, are granted only in second adjudications where there is danger from delay, and presuppose the competency of the Court to constitute the debt. They are never granted in first adjudications; because there the debtor is entitled to insist for a special adjudication, setting aside lands sufficient to answer the debt, with one-fifth more, which can only be done when its precise amount is previously ascertained in a competent action. And as no adjudication has been taken against Admiral Stewart's estate, if the pursuers were to attempt one, this mode would be adopted by his trustees.

At advising the petition, an opinion was given in favour of the competency of the action; but the petition was refused without answers, on the ground that the interlocutor reserved all objections, and that there was no harm in allowing the decree to go out valeat quantum.

Lord Ordinary, Armadale. For the petitioner, Jo. Clerk. Clerk, Menzies. Fac. Coll. No. 41. p. 316.