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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Adam Cockburn of Ormiston, one of the Senators of the Court of Justice, and Dame Ann his Wife v. John Hamilton of Bangour, a Minor, by his Curators [1712] UKHL Robertson_32 (28 March 1712)
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Cite as: [1712] UKHL Robertson_32
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SCOTTISH_HoL_JURY_COURT
Page: 32↓
(1712) Robertson 32
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 11.
v.
Subject_Lis finita. —
Fountainhall 21 Jan. 16 Nov. 1708. 15 Jan. 9 & 18 Feb. 11 & 17 Nov. 1709. 11 Jan. 3 July, and 8 Dec. 1711. 5 & 16 Feb. 1712.
Forbes, 21 Jan. 1708. 21 Jan. 11 Nov. 6 & 14 Dec. 1709. 15 Dec. 1710. 17 Jan. and 8 Nov. 1711.
After extracting a decreet, with a reservation therein of several point, the objection of Lis finita and that these points were not contained in the original summons, is sustained by the Court, but reversed upon appeal.
Subject_Funeral expences. —
In a question between the heir and the assignee of the executrix of a Lord Justice Clerk, 250 l., being modified, as sufficient for funeral expences, the judgment is reversed.
Subject_Prescription. —
Furnishing to the funeral did not form such a continuation of accounts as to bar the triennial prescription of accounts incurred before the death of the deceased.
Subject_Confirmation. —
The Court having refused to allow to the assignee of an executrix in a question with an heir served cum beneficio, the expences of an action before them relative to the right of confirmation between the executrix and the father of the heir served cum beneficio, the judgment is reversed.
Sir William Hamilton of Whitelaw, Lord Justice Clerk, the appellant Ann's first husband, in 1703 executed a bond in her favour for 7000 l. sterling, payable at Whitsunday or Martinmas next after his death. This bond was made a burthen upon his whole estate, real and personal, but not to affect the heirs of his own body. Sir William having died without issue, was buried with great pomp. His sister, Christian Dunlop, was confirmed his executrix; and the personal estate being insufficient to satisfy the claims of the widow, the executrix assigned to her the whole executry, the widow becoming bound to relieve her of the debts, funeral expences, and charges of confirmation, which last amounted to a considerable sum, a litigation having been carried on first before the commissaries, and afterwards before the Court of Session, with regard to the same, between Christian, Sir William's sister, and the father of the respondent, who was alive at Sir William's death, and his nephew and apparent heir. The respondent's father having died, the respondent was served heir to Sir William cum beneficio inventarii.
The appellants brought an action before the Court of Session against the respondent for what was due on the said bond, after application of the free personal estate in part payment thereof, first repaying out of such personal estate, to the appellant Ann, what she had paid to sundry creditors of the deceased, the funeral expences and expences of confirmation.
For those payments the appellants also brought an action against the executrix, in which last action the respondent appeared for his interest.
A point of law arose upon what the appellant Ann had paid to Sir Robert Blackwood and others for furnishing of goods to the deceased before his death, and also for furnishing to his funeral:
Page: 33↓
The action proceeding as to the other points, an account of the funeral expences was given in amounting to 421 l. 8 s. 7 d. to this the respondent objected as extravagant, and the Court by interlocutor on the 14th of December 1709, “reduced the same to 250 l.” An account of the expences of confirmation was also given in amounting to 100 l., which being objected to, the Court by interlocutor on the 15th of December 1710, “refused to allow the expences occasioned by the action before the Court of Session, relative to the confirmation amounting to 34 l.”
Upon those two points the appellants represented to the Court, that the extraordinary expences of the funeral, as well as of the confirmation had been occasioned by the respondent's father, then apparent heir of the deceased; and of this she offered to make proof, and the Court allowed a proof to both parties.
In the mean time the appellants with consent of the respondent petitioned the Court that after extinction of the bond debt pro tanto by the personal estate, which had come to the hands of the appellant Ann, decree might pass against the respondent as heir served to the deceased, for those parts of her claims which were wholly uncontroverted, not including any part of the funeral expences; or expences of confirmation; and decree was accordingly passed for 2818 l. 13 s. 4 d., with a reservation in these terms, “reserving always to the pursuers, to insist for the funeral expences, and confirmation of the testament and other points not thereby determined as accords,” and in these terms decree was extracted in September, 1710.
The proofs before mentioned being afterwards finished and reported, the Court by interlocutor in November 1710, “found that no action of the defender's father, to whom he was not served heir could affect him.”
The respondent however when the action had proceeded thus far took up a new defence namely that there was no conclusion in the original libel against the respondent upon these points, and that by extracting the decree before mentioned lis erat finita; and the Court on the 29th of June 1711, “found that by the decree extracted lis erat finita notwithstanding of the reservation contained therein.”
And afterwards on a petition for the respondents the Court on the 28th of November 1711, “allowed him to retain 250 l. for his expences out of the heritable estate of the deceased, subject nevertheless to a proportional defalcation in case the heritage
Page: 34↓
Entered 22 Jan. 1711–12.
The appeal was brought from “several decrees orders and interlocutory sentences made by the Lords of Session, and particularly from the decree or sentence of the 29th June 1711.”
Heads of the Appellants' Argument.
By the said extracted decree, the right of the appellants as to the funeral charges and expences of confirmation was expressly reserved to them; and this reservation, with the long acquiescence of the respondent, and the appellants, examining witnesses by order of the Court on these points, were a sufficient answer to the objection of Lis finita.
But further the appellants brought an action against the executrix of Sir William Hamilton, and her representatives after her decease, and the claims for funeral charges and expences of confirmation were a part of the process against the executrix to which the respondent made himself a party by appearing to it, and that action is not Lis finita.
With regard to the merchants' accounts found to be prescribed by the Court, these accounts were not only justly due by the deceased, but the same merchants having furnished goods to the funeral, within three years of the next preceeding articles in their respective accounts, it made such a currency as prevented their being cut off by the act of parliament founded on by the respondent.
With regard to the expences of the funeral: Sir William Hamilton from a small fortune, (being his father's fourth son) acquired a considerable estate; and he died not only in the character of a Lord of Session, but also of an Officer of State, as Lord Justice Clerk, leaving a competent estate and no issue, and he himself caused a former wife to be interred in the same manner except heralds before he was an Officer of State. The respondent's father, too, then living, and Sir William's apparent heir, approved of and ordered the funeral, and all the particulars claimed were paid by the appellant Anne: For these reasons the Court ought not to have restricted the funeral expences.
The expences of confirmation were all necessarily spent by the executrix in defence of her right, against the respondent's father, who first in the Commissary Court opposed the granting thereof, and not prevailing there carried the matter before the Court of Session, where after a long and chargeable contest he was forced to submit. And the appellant Anne actually paid these expences of confirmation.
The Court of Session has not only deprived the appellants of their charges and expences, but has on the contrary allowed the respondent 250 l. for costs or expences out of the heritable estate, which was unreasonable, before the whole claims of the appellants were satisfied.
Page: 35↓
Heads of the Respondent's Argument.
The appellants having brought their action for payment of 7000 l. 200 l. of annuity, and 200 l. for the maintenance of the family (nothing else being demanded), judgment was given on all these points; and the appellants having possessed themselves of all Sir William Hamilton's personal estate, they gave in an account of the amount thereof, and demanded that the same might be entirely imputed towards satisfaction of part of the said bond, and that judgment might be given against the respondent for the remainder. The Court agreed to this, and gave judgment for 2820 l. 15 s. against the respondent, and the decree was extracted: it only reserved a liberty to insist for funeral expence as accords. But this reservation can import no more, than that what is so reserved, is not deserted, and may still be sued for in due and ordinary form. This, however, can never be presumed to extend the appellants' claim, further than was contained in the action brought by them, or to entitle them to insist upon the former libel and process, wherein decree was extracted, which put an end to that suit. It might, otherwise, be in the power of a person to bring an action for one thing and after having judgment in that to reserve a liberty to ask another without a new libel, which would be destructive of all justice as well as form. Though there were afterwards several debates upon the subject of the funerals, yet these proceeded only upon the erroneous supposition, that the appellants had claimed the same in their libel against the respondent; and as soon as this was discovered to be a mistake it was proper to go no further.
The action against the executrix was merely collusive, and it is impossible that any sentence can pass upon that action against the respondent, because he was not cited or called to it, and his appearance to prevent collusion does not make him a party. Neither has that suit any connection with this, and therefore it can be no part of the action at the instance of the appellants against the respondent. The expences of confirmation could not regularly be brought into that action, because they were laid out by the executrix herself, and were not assigned by her to the appellant Anne, and therefore the executrix could not be sued for them. As to the funeral charges they were not in the original libel, either against the respondent or the executrix, nor could they be so, because the appellant had not paid them, (at least for the greatest part) till long after the commencement of the said actions.
1579. c. 83.
By the act of parliament 1579. c. 83. it is enacted that, “all actions of debt, for housemails, &c. be pursued within three years, otherwise the creditor shall have no action except he either prove by writ, or by oath of his party.” This law is very positive and plain, and howsoever it has been extended in some cases by the Court of Session, yet it never was interpreted so, as contended for by the appellants, that the furnishing to the funeral should stop the prescription established by this act especially when these furnishings were neither by order of the heir or executrix.
Page: 36↓
1695, c. 24.
With regard to the expences allowed to the respondent,—by the ancient law of Scotland, an heir was obliged in payment of all his predecessor's debts, though ten times more than the estate descending to him; though executors were only liable so far as they had assets, provided they gave up an exact inventory of all the goods and effects of the deceased. This privilege, the parliament of Scotland in 1695 likewise extended to heirs: and the heir in this case was called heres cum beneficio inventarii, and in these terms was the respondent heir to Sir William Hamilton. The appellants having obtained judgment for 2820 l. sterling, sued it to execution upon Sir William's heritable estate, and the respondent thereupon represented to the Court, that he being heir cum beneficio inventarii, was only accountable for what he had received; that he was willing to assign Sir William's whole estate for satisfaction of the appellant's demand, reserving to him so much of the said estate as would answer the expences laid out by him in managing and defending the estate. As executors had certainly an allowance for their necessary expences, and as heirs were by the said act in the same condition with them, they ought to have the same privilege; otherwise, neither heirs nor executors would put themselves to any expence to manage and defend an estate from unjust claims.
Though this claim was so reasonable, yet there never having been any adjudged case upon the point, the Court of Session proceeded very cautiously, and did not precisely determine the question of the respondent's expences, but only reserved the sum of 250 l. provisionally as a fund for them, out of which they might allow the heir his necessary expences, if they should think that in law they ought to be allowed, and still left themselves at liberty to determine what expences were necessary; but in all probability the case will never exist, because the estate will amount to more than sufficient to pay the debts; and it was therefore unreasonable in the appellants to bring their appeal against a sentence which is not final, and does not determine the question between the parties, but is still subject to review.
Judgment 20 March, 1712.
After hearing counsel, .
Counsel: For Appellants,
Tho. Powys.
Rob. Raymond.
For Respondent,
David Dalrymple.
Sam. Dodd.
Part of the Judgments here reversed, are founded on as existing cases in the Dictionary vol. I. voc. Funeral Charges, p. 338. and vol. II. voc. Personal and transmissible, p. 74.