Scottish Court of Session Decisions

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Cite as: [1872] SLR 9_291, [1872] ScotLR 9_291

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SCOTTISH_SLR_Court_of_Session

Page: 291↓

Court of Session Inner House First Division.

Friday, February 9. 1872.

9 SLR 291

The Earl of Rosslyn

v.

Mrs Mary Cunningham or Lawson.

Subject_1Process
Subject_2Constitution, Action of
Subject_3Executor.
Facts:

Where an action was brought against an executrix for a debt due by the deceased,— Held that, expenses being concluded for in the usual way, and not “in the event only of the defender appearing and opposing,” the action was not an action of constitution merely, but petitory, and against the defender personally as executrix, and that therefore it was a valid defence that the executry funds were not sufficient to meet the demand; and proof of their amount allowed accordingly.

Headnote:

In this action Lord Rosslyn sued the defender Mrs Lawson for the value of coal supplied to her deceased husband from his collieries at Dysart, and concluded in the ordinary way for expenses. It was admitted that the defender was executrix of her deceased husband.

The Lord Ordinary ( Gifford) allowed parties a proof of their averments. But though the defender averred the insufficiency of the executry funds, and pleaded that she was ready to hold count and reckoning with all interested, proof of the amount of said funds was not held included in the said order; and the Lord Ordinary, on 3d November, pronounced an interlocutor, finding the pursuer's claim against the defender, as executrix qua relict of her deceased husband, established, and therefore decerned against her in terms of the libel, with expenses.

Against this interlocutor the defender reclaimed.

Taylor Innes for her.

Watson and Trayner for the pursuer and respondent.

Authorities— Gairdner, Nov. 28, 1810, F.C.; Cook v. Crawfurd, 11 S. 406; and Lomond's Trs. v. Croom, March 8, 1871, 8 Law Rep. 412.

At advising—

Judgment:

Lord President—There can be no doubt as to the true character of this summons. In it the pursuer demands decree against Mrs Lawson as executrix dative qua relict of the deceased James Lawson, her husband, and concludes for a sum of £100, 9s. 1d., with interest from the 30th April 1871, “when the same fell to have been paid, until payment, together with the sum of £50 sterling, or such other sum as our said Lords shall modify as the expenses of the process to follow hereon.” Now, a creditor in a summons of constitution is not entitled to expenses except in the event of the defender appearing and opposing the action. If, therefore, this was intended as a summons of constitution

Page: 292↓

merely, it should have been framed on that principle, and expenses only asked in the event foresaid. This has not been done, expenses are asked simpliciter and in the ordinary way, therefore I hold that the decree asked is one against the defender personally. Her defence against this is simply that she is not in possession of executry estate sufficient to pay the debt. That is the substance of her case. If she is not in possession of any executry estate, then decree cannot go out at all. If she can pay a dividend upon debts due by the deceased, then the decree may be modified so as to give the pursuer right to a sum proportional to his debt. In this state of matters there can be no satisfactory conclusion till we know the one important fact in the case, namely, what is the amount of the executry estate which the defender ought to have in her hands. I think, therefore, that we must order proof upon this point.

The rest of the Court concurred.

An interlocutor was accordingly pronounced, allowing parties a proof upon the subject of the amount of executry estate in the defender's hands.

Solicitors: Agent for Pursuer— P. L. Beveridge, S.S.C.

Agents for Defender— Murdoch, Boyd, & Co., S.S.C.

1872

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