Scottish Court of Session Decisions

After the death of the wife of William Fleming, change-keeper in Glasgow, Elizabeth Donaldson and Others, her next of kin, claimed her paraphernalia, which Fleming refused to deliver up, alleging they were requisite to reimburse him for her funeral expenses, as there were no free goods in communion. The next of kin presented a petition to the Sheriff, who caused an appraisement to be made, which showed there were moveables to the amount of £36, 0s. 9d. on Fleming's premises. The next of kin gave up all claim to a share of the goods in communion, and the Sheriff thereon found them entitled to immediate possession of the paraphernal goods, and ordained Fleming to deliver them up, and pay £7, 1s. of expenses of process. The Sheriff observed in a note, that, as the petitioners gave up any claim on the goods in communion, it was unnecessary to enquire whether any free balance would remain after Fleming's debts were paid. Fleming raised a reduction of the Sheriff's decree; but, before it was called in Court, the next of kin and their law-agent raised diligence on it, and incarcerated Fleming. He presented a bill of suspension and liberation on juratory caution, and pleaded, 1. That as he had raised a reduction, and no mora had occurred in following it out, he was entitled to have the diligence suspended; 2. That, on the merits, the Sheriff's judgment was erroneous, as the paraphernalia must be liable for the burial of their owner, if no other estate was left; and there could be no other, if there were no free goods in communion.

The chargers answered, 1. That the act of raising a reduction could have no effect on the merits of a suspension, otherwise every suspender would resort to it; 2. That the merits were not properly brought before the Court, but only the charge for expenses, and therefore the bill must be refused, and that the bill could not be passed at least on juratory caution, seeing the decree was pronounced causa cognita.

The Lord Ordinary, “in respect that the bill complains of the decree of the Inferior Court only in so far as regards the expenses, to which extent alone it is said that that decree has been enforced; in respect that no advocation was brought; and in respect of the cases of Shiels, 2d July, 1825, and Scott, 26th November, 1831, refused the bill, and found the suspender liable in expenses, which modifies to £4, and decerns; reserving to the complainer any redress to which he may be entitled under the reduction which he states himself to be in the course of prosecuting.”

Fleming reclaimed; and explained that the charge given to him was to deliver up the paraphernalia as well as to pay the expenses, and therefore a suspension of it embraced the whole merits of the action in the Inferior Court.