Scottish Court of Session Decisions

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Cite as: [1834] CA 13_143

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SCOTTISH_Shaw_Court_of_Session

Page: 143↓

Thomson

v.

Jones No. 50.

Court of Session

1st Division D

Dec. 9 1834

Ld. Fullerton, Lord Balgray, Lord Gillies, Lord President, Lord Mackenzie

Mrs Elizabeth Thomson, Suspender.— D. F. Hope— Reid. Mrs Miller or Jones, and Husband, Chargers.— Sol.-Gen. Skene— J. Anderson.

Subject_Passive Title—Vitious Intromission.—

Circumstances in which a widow's continuance in possession of certain household furniture and machinery of her deceased husband, held not to amount to vitious intromission, though she did not make up any legal title.

The late David Thomson, manufacturer and yarn merchant in Glasgow, died intestate on 1st December, 1821, leaving a wife and six children. He was indebted to the amount of several thousand pounds, and in a state of insolvency. Mrs Elizabeth Thomson, his widow, continued in the possession of the house and furniture of her husband. In February, 1823, she got an appraiser to value the furniture certain spinning machinery, conform to inventory, as hating been her husband's The furniture was valued at £75, 3d., the machinery at £21, 11s. 3d.; in all, £96, 11s. 11d. On the 2d of April, Mrs Thomson gave up the appraised inventory to the Commissary of Glasgow, as an inventory of the personal estate of the deceased; and she deponed, that “the foregoing inventory is a full and complete inventory of the personal estate and effects of the said deceased, wherever situated and belonging, or due beneficially to the deceased at the time of his death, in so far as the same has come to the deponent's knowledge; and that the value of the said estate situated in Scotland is of the value of £96, 11s. 11d.”

She did not obtain herself confirmed executrix; but she paid preferable debts, such as deathbed expenses, taxes, and house-rent, to the amount of £96, 2s. 7d.; and also ordinary debts to the amount of £54. One of the creditors of her husband, named Margaret Miller, having applied for payment of a debt, alleged to amount to £107, Mrs Thomson answered, on 20th September, 1822, “I have a perfect recollection of the promise made you, and as soon as it is in my power, I mean to make it good—but until my affairs are properly arranged, I cannot say when; but you may rely on my honest and sincere intention to fulfil it as soon as in my power. Your claim has been to me the cause of great uneasiness; but my heavy loss was so sudden and unlooked for, that things were thrown into great confusion. My trial has been a heavy one. I can describe my feelings to none, but they may be easily conceived, left with such a large young family,”

To another application by Margaret Miller, Mrs Thomson caused her brother-in-law to return the following answer, on 21st February, 1825; “I again write you, at Mrs Thomson's request, to crave a little more of that indulgement which you have so long and kindly shown her. It is now, I believe, past the time that you were promised some money, and Mrs T. had made arrangements accordingly; but about a month ago, by the failure of a London house, some of the manufacturers here, with which she was a little interested, had to stop payment, and in consequence some bills had to be retired by her, which fell due about ten days ago; the manufacturers, however, pay a decent composition, and every thing is again going on well, but those circumstances have taken all her ready funds; in a few weeks, however, I should suppose something may be sent you. Mrs T. is very sorry indeed that you should be solicited to stop a little longer, but trusts you will do so, which will greatly oblige her; and I am, &c.”

After the death of Margaret Miller, her representative, Mrs Miller or Jones, and husband, in 1831, raised an action against Mrs Thomson, as having become personally liable for the debt of Margaret Miller, and they obtained decree in absence. They raised diligence on the decree, and incarcerated Mrs Thomson, who presented a bill of suspension and liberation, pleading, 1. That she was not liable as a vitious intromitter, as she had merely continued in possession of the small amount of furniture and machinery left by her husband; had given up an inventory upon oath; and had paid debts to an amount exceeding the value of the inventory, and the chargers had not called her to account for her intromissions, or put her on her guard for ten years after her husband's death: 2. That if not otherwise liable, the letters to Margaret Miller could not create a liability of themselves, as they merely expressed her desire and intention to pay the debt if she was able. The chargers answered, 1. That there was general intromission with the whole moveable estate, and without order of law; two years elapsed before any inventory was given up, and there was no guarantee whatever that the goods then inventoried were the same as at the death of the husband; and the suspender had never confirmed herself executrix. 2. That the letters written to Margaret Miller amounted to au acknowledgment of the debt, and an obligation to pay it. The Lord Ordinary (Craigie) “refused the bill as unnecessary, in respect that it is stated in the answers that the suspender is not in jail.” ^*

A second bill was presented, explaining, that as Mrs Thomson was only out of prison on a sick bill, she remained truly under the force of the charger's diligence. The Lord Ordinary (Moncreiff) “passed the bill” without caution or consignation. ^†

_________________ Footnote _________________

* “The Lord Ordinary is of opinion that the case is not one of vitious intromission. The suspender is the widow of a trader, possessed, as it is said, of heritable subjects, as well as of moveables. At her husband's death, she continued to manage his family, and also, with the aid of her brother, to carry on the trade, having thus a justifiable title of possession, as well as a partial interest in the funds. In this way, she was allowed to act for many years with the knowledge of the chargers and the other creditors of her husband, who ought to have interposed, if they thought her conduct was improper. At this time it is not alleged that she is in possession of funds which belonged, or had arisen from funds belonging to her husband.”

† “ Note.—It is clear that the complainer must be considered as under incarceration, to the effect of rendering it necessary so far as to decide on the merits of the bill.

“By passing the bill, the Lord Ordinary by no means intends to decide or give any conclusive opinion on the question, whether this may be a question of vitious intromission or not. That may depend on matters of fact and law, which may require investigation. All that he thinks it necessary to say is, that as the averment is positive that the complainer neither recovered any debts due to her husband, nor intromited with any funds belonging to him, but merely continued to occupy the furniture, &c., of which an inventory was ultimately given up; that the preferable debts paid, according to the receipts produced, exceeded the value of all that property; and that the property of her husband is still extant, he is not prepared to say on the authority of any of the recent decisions, that this is so clearly a case of vitious intromission, as to make it imperative to sustain personal diligence against a woman situated like the complainer, upon a decree in absence, and without discussion. And in such a case, to require caution after ultimate diligence, would be equivalent to refusing all redress.

“As to the second ground stated in support of the demand, the Lord Ordinary doubts much whether, if the complainer was not otherwise personally liable for the debt, any thing in the letters quoted would be sufficient to create such an obligation. She might honestly intend to make exertions for paying the debt, without meaning to acknowledge that she was legally bound to do so; and in one of those letters, the respondent is distinctly referred to the husband's property as still extant. The Lord Ordinary observes, besides, that the counterparts of the letters are not produced; and, as far he can discover, the claim seems not to have rested on any statement of a legal obligation by the complainer as representing her husband, but on some verbal promise of a different kind, the nature of which would require more explanation than is here given, to make a relevant ground of action.”

A record being made up after the letters were expede, the Lord Ordinary “repelled the reasons of suspension, found the letters orderly proceeded, and decerned, and found the chargers entitled to expenses.” ^*

Mrs Thomson reclaimed.

_________________ Footnote _________________

* “ Note.—It is admitted by the suspender, that on the death of her husband, (December 1, 1821,) she took possession, not only of his whole household furniture, but also of the machinery which he had used as a manufacturer. It was not until the 2d of April, 1833, that she gave up an inventory of the articles so taken possession of, and it is admitted that no farther steps were ever taken for completing a title. It is also admitted by the suspender, that she not only took possession of her husband's moveable effects, but that she used the machinery forming part of those effects in the prosecution of the manufacture formerly carried on by him; and accordingly it appears, from her letter of 20th September, 1822, and from that of 21st February, 1825, which she admitted at the bar to have been written by her authority, that without any reference to the amount or situation of the effects of her deceased husband, she assigned the state of her own affairs as her reason for delaying the payment of the debt due to the charger. In these circumstances, it appears to the Lord Ordinary, first, that the suspender has incurred the passive title of vitious intromission, by the possession and application to her own use of the moveable effects of her husband without a title; and, secondly, that her liability is confirmed in regard to the debt in question by her own letters, obviously warranting the creditor to rely upon her own personal responsibility.”

Lord Balgray.—Every question of vitious intromission depends on its own circumstances, so that it is scarcely possible for one case to be a precedent exactly in point to another. In the present case, I am clearly for altering the interlocutor of the Lord Ordinary. Mrs Thomson, the widow, merely continued the possession of the small amount of furniture and machinery which were in the house at her husband's death. If this were to infer vitious intromission and universal liability, I conceive it would produce the most injurious consequences to that great portion of the population of this country which consists of the smaller tenantry, or minor manufacturers and shopkeepers. It is not to be expected that amongst them, the moment that the breath is out of a husband's body, the widow is to cede possession, or make up a legal title. If the principles maintained by the chargers were pushed to their full length, it would follow that one single day's possession, though a mere continuance of possession, would infer vitious intromission. This would be highly injurious; and the true principle which creates the severe liability consequent on vitious intromission is, that such intromission has been fraudulently had. Where it is clear, as in this instance, that there is no fraud in the case, there is no universal liability incurred. The suspender appears to have paid debts to an amount greater than the value of the effects intromitted with, and I think the reasons of suspension ought to be sustained.

Lord Gillies.—I am of the same opinion. I think the true legal view of the suspender's conduct is, that she had no vitious intromission, so as to infer universal liability. And I may observe, that that character of her intromission is not accurately described in the note of the Lord Ordinary, where his Lordship says that “she took possession” of the furniture and machinery. The fact rather was, that she continued possession, and the difference is not immaterial in a question as to the animus with which she acted. And what is it that she thus continued to possess? Household furniture to the value of £75, and some machinery worth £21; and the debts of her husband, to which it is said she must be universally liable, on account of her intromissions, amount to several thousand pounds. When I consider the amount and the character of the intromissions, arising merely from the necessary continuance of possession by the widow, I consider there has been no vitious intromission.

Lord President.—I concur. I not only think there has been no vitious intromission by the widow, but there was a culpable remissness by the chargers, whose action is not raised till ten years elapse after Mr Thomson's death. The intromission in this case appears to me to fall under the exception referred to by Erskine, who considers that a widow's mere continuance in the possession of such effects as were here intromitted with, does not necessarily infer vitious intromission; and, in the circumstances of this case, I think vitious intromission did not exist.

Lord Mackenzie.—I am of the same opinion. There was not, properly speaking, a general and universal intromission; it was with the furniture, and a certain insignificant amount of machinery in the house. Every case like this is one to be judged of by its own circumstances. I think there is no proof of fraud, and no reasonable presumption of it. I therefore consider there has been no vitious intromission.

The Court altered the interlocutor of the Lord Ordinary, sustained the reasons of suspension, and found the chargers liable in expenses.

Suspender's Authorities.—Gardner, Feb. 26, 1830 (ante, VIII. 600); Bell's Principles, p. 498; Scot, Dec. 5, 1623; Bell, March, 1686; Stark, Jan. 22, 1713; Gemmell, July 9, 1724; Black, Jan. 26, 1739; Reach, Feb. 26, 1668; Wilson, June 19, 1772.

Chargers' Authorities.—Ritchie, March 7, 1795 (9838); Forbes, June 11, 1823 (ante, II. 396); Cuningham, &c., Feb. 8, 1827 (ante, V. 315); 44 Geo. III. c. 98.

Solicitors: W. Muir, S.S.C.— J. Richardson, W.S.—Agents.

SS 13 SS 143 1834