Scottish Court of Session Decisions

This was a note of suspension brought by John Malcolm, residing at Forrest Hill, in the county of Clackmannan, v. William Dick, labourer, residing at Fens, Dunblane, the eldest son and nearest and lawful heir of the deceased Robert Dick, sometime carrier in Dunblane, and sometime residing at Dollar Mains, and executor of the said Robert Dick, or otherwise representing him. Malcolm had been charged at the instance of William Dick to make payment of the sum of £250, alleged to be the balance due by him upon his intromissions as trustee for himself and his lawful creditors, under a disposition omnium bonorum, dated 21st December 1843, granted by Robert Dick in favour of the

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suspender. This charge was given to Malcolm upon a decree obtained in absence against him, in an action of count, reckoning, and payment, at the instance of William Dick. In the summons, Dick designed himself “eldest son, and nearest and lawful heir of the deceased Robert Dick, sometime carrier in Dunblane, and sometime residing at Dollar Mains, and as executor of the said Robert Dick, or as otherwise representing him under one or other of the passive titles known in law”; but produced no title in either character. With the answers to the suspender's statement in the present process, however, Dick produced a writ bearing to be a precept of clare constat in his favour; and with his revised answers produced a document bearing to be a decree-dative in his favour by the Commissary of the county of Clackmannan, dated 22d February 1865. The suspender denied any liability on his part to the respondent, or to the representatives of the late Robert Dick, in the sum concluded for, and maintained that the decree ought to be suspended in respect the pursuer had no title to pursue the action in which it was obtained, and in respect no such title was produced. The Lord Ordinary (Jerviswoode) gave effect to this plea, and suspended the decree and the charge complained of. His Lordship added the following note to his interlocutor:—

“It appears to the lord ordinary that the suspender is entitled to the remedy here sought under the prayer of the note. It Is clearly established that when the respondent raised the action in which the decree in absence complained of was obtained, he held no title whatever in his person as heir or executor of the deceased Robert Dick, such as to warrant him to pursue. It is true—and the lord ordinary does not understand the suspender to dispute the proposition—that to warrant a pursuer in the position of the present respondent to insist in an action such as that in which the decree complained of here was obtained, neither a completed title as heir, nor an actual confirmation as executor, is necessary. but it is maintained for the suspender, and, as the lord ordinary thinks, on sufficient grounds, that it was essential that evidence adequate to establish that the pursuer, in the original action, truly possessed the character in which he sued, must be produced. And while the recent statute of 21 and 22 Vict., Cap. 56, simplifies and now regulates the procedure in the matter of the confirmation of executors, it operates no alteration of the law as it previously existed, under which it was requisite that one suing as an executor should produce, as his title to warrant him to sue, evidence of his right to that office, either through direct nomination to it, or by force of a decree-dative. Actual confirmation of the sum sued for, though necessary as a title to uplift and discharge, could not be demanded as requisite to support the title to sue.”

The Respondent Reclaimed.

Thoms, for him, argued that the pursuer, being next of kin of the deceased granter of the disposition omnium bonorum, was, as such, vested in the moveable estate of the deceased, under the Act of 4th Geo. IV., cap. 98. The pursuer being thus already vested in the estate and entitled to the office of executor, the decree-dative was merely declaratory of his right to that office, and any objection to his title was obviated by the decree-dative made up and produced in the course of the proceedings, and as soon as the objection was stated. It was admitted that the claim pursued for in the action was moveable, and could not be insisted in by the pursuer in his character of heir.

A. R. Clark and Orr Paterson, for the suspender, were not called on to reply. A

At advising,