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SCOTTISH_HoL_JURY_COURT

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(1714) Robertson 80

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 22.

George Lockhart Esq; Appellant

v.

John Chiefly of Kersewell, Writer in Edinburgh, Margaret Pow, William Montgomery, Walter Chiefly, and William Bertram, Respondents

7th May 1714.

Subject_Non-entry. —

A Superior having obtained a general declaratory of non-entry, his agent in a subsequent ranking restricts the superior's interest so as to be ranked posterior to annual renters. On a reduction by the superior on the head of lesion and as being absens reipublicæ causa, the ranking is sustained.

Subject_Ranking and Sale. —

It is not relevant to reduce a decreet of ranking, that posterior to the date of the decreet the interests of certain creditors were produced, and ranked, and yet no new decreet put up in the minute-book.

John Cheisly deceased, late husband of the respondent Mrs. Pow, was vassal in the lands of Kersewell, of which the appellant was superior; and he was also indebted to the appellant.

These lands being much incumbered, Mr. Cheifly's son and heir, the respondent John, did not enter as heir to him and there being several creditors upon the said estate who claimed by different titles, an action of ranking and sale for determining the preferences of the creditors, and for selling the lands for their satisfaction, was brought before the Court of Session.

Pending this action, the appellant brought a declarator of non-entry against the respondent, the heir, before the Court of Session, but he did not call the creditors as parties. The court in that action pronounced an interlocutor declaring that the Said lands had been in non-entry, and in the hands of the appellant since the death of the last possessor, and were to continue in the appellant's hands till the entry of the heir, and that thereby the rents, duties, and profits of the Said estate, from the 18th of January 1702–3, did belong to the appellant. But afterwards the appellant, having Sundry Sums due to him and those under whom he claimed, by adjudication upon the Said estate, agreed and consented in his action of declarator to restrict his claim so far as only to remain a Security for payment of the Several sums due to him, he being first paid; and alter making this restriction the Court gave

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judgment accordingly on the 1st of January 1709, and in these terms decree was extracted.

Afterwards, however, in the process of ranking and Sale, Mr. Montgomery, since deceased, then the Second husband of the respondent Margaret Pow, who was entrusted with the ordinary management of the appellant's affairs, as his agent, and held his factory, consented and agreed on behalf of the appellant, when the preferences came to be adjusted, that the appellant's claims as a creditor by adjudications should be preferred to the adjudications of all personal creditors, but postponed to the claims of the creditors annual-renters, or creditors by voluntary real Security. And accordingly the decree of ranking was pronounced on the 7th of February 1710–11, whereby the respondents, Pow, Montgomery, Walter Cheisly, and Bertram, amongst others as annual-renters, Were preferred in payment to the appellant: This decree also was extracted.

The respondent Pow's title was by her marriage Settlement, whereby she had 50 l. per annum Secured to her by her Said former husband, John Cheisly, deceased, payable out of the Said lands of Kersewell. The respondent Montgomery's claim out of the Said estate was for arrears of the Said respondent Pow's jointure, accruing in the lifetime of her last husband Mr. Montgomery, whose representative the respondent Montgomery was.

The claims of the other respondents, Walter Cheisly and Bertram, were likewise as annual-renters or creditors by real Security on the Said estate.

The appellant afterwards brought an action of reduction before the Court of Session, of the said decreet of ranking, as being pronounced while he was absens reipublicæ causa, and when he ought to have been decreed the first creditor as being entitled thereto, by his decree in the declarator of non-entry; and that though the person who appeared for him in the ranking did not claim the preference due to him, yet he had no special mandate for so doing, especially since that person had particular advantage by such neglect; and also that the said decree ought to be reversed because though it bears date the 7th of February 1710–11, yet Several creditors had their titles determined, though not produced till after the 7th to February.

On hearing these reasons of reduction the Court on the 21st of January 1714 “repelled the reasons of reduction that posterior to the decree of ranking, the interests of Muir, and the Box-master of Leith were taken in and ranked, and yet no new decreet was put up in the minute book, in respect that by the taking in and ranking of the said interests there was no new scheme or class made in the said ranking, but the Said interests were only joined unto the classes of the creditors that were formerly ranked posterior to the appellant; as also Sustained the defence of res judicata against the appellant, in respect it was not now competent for the appellant upon the said production made for him in the decreet of ranking to crave of new a perference to the said creditors that were

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preferred to the appellant in the Said decreet of ranking.” The appellant reclaimed, but the Court on the 27th of February thereafter, adhered to their former interlocutor.

Entered 5 March, 1713–14.

The appeal was brought from “an interlocutor of the Lords of Council and Session of the 21st of January 1714, and the affirmance thereof,” and from “Several orders whereby the appellant is excluded from a preference to receive his just debt.”

Heads of the Appellant's Argument.

By the decree of declarator of non-entry the appellant had an undoubted title, to all the rents and profits of the lands during the non-entry of the heir preferable to all other creditors, which would have amounted to much more than what he claimed, as due to him by adjudication; but the appellant restricted his large claim and used it only as a Security to prefer him for his just debts. And though this decree had been extracted, yet in the action of ranking and Sale, while the appellant was in London, attending the Service of the House of Commons, and commission of accounts, and though he had not weaved his privilege they proceeded in the said matter, and the decree of ranking was extracted before the appellant was in the least made privy to it. The appellant, then, being very much prejudiced by the decree in the ranking, and it being during his absence, the same ought to be reduced, and the appellant found to be entitled to the preference due to him by the decree of declarator.

Though the person entrusted with the ordinary management of the appellant's affairs, did neglect or rather wilfully omit to claim the just preference for the appellant which he had right to, yet that fault of his ought not to prejudice the appellant, since he had no Special mandate from the appellant so to do.

It is plain, too, that the agent had his own private interest in view by thus neglecting the interest of the appellant. For he himself being a creditor upon the estate by an heritable right, and his wife having a jointure of 50 l. per annum out of the estate, had he claimed the just preference for the appellant, he would entirely have Sunk his own demand and endangered his wife's jointure. To save this, he gave a preference to all the creditors who claimed by a like title with his own to the appellant.

The decree under reduction cannot be looked upon as res judicata, because though it bears date the 7th of February 1710 11, yet three or four creditors are preferred in that decree, who do not so much as compear and produce their rights till some time after the date thereof; but it is impossible that creditors can have preference by a decree bearing date before their compearance or production of their rights.

Heads of the Respondents' Argument.

Supposing the declarator of non-entry of well fixed, that the same were unexceptionable, yet the respondent Pow, will be preferable to the Superior off account of her jointure; for it is triti juris that the terce excludes non entry, as well as the courtesy

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of the husband, these being usufructus constituted by law, which do not require for their establishment the consent or deed of the superior, quia ex jure publico descendunt. The privilege of wives to terce remains with them, as to their conventional provisions, at least in so far as the said provisions do not exceed the terce. There is no law for depriving wives of the legal security for their conventional provisions, being within the limits of their terce as it is in the present instance.

But the appellant never proceeded further than a general declarator of non-entry, which is not sufficient to found a preference of debt; and that general declarator was in this case obtained by collusion between the superior and the heir of the deceased vassal. To that suit the respondents were neither summoned nor did they appear therein, and therefore the same cannot operate against them, nor create or found a preference to the appellant in their prejudice without the allowance of the respondents the creditors. For, had these respondents known of this suit it would have been very easy for them to have rendered the same ineffectual, by tendering to the appellant the arrears of the rents and services due to him as superior. And in June 1713, he got payment of, and gave a full and ample discharge, and acquittance for all the rents and services that were due to him as superior of the said lands, which was a plain passing from that decree.

The appellant in fact was not absens reipublicæ causa, when the suit first began, which continued for some years. And he was in Scotland several times during the continuance of that suit, and when the decree was extracted: but though he had been absent, yet that can be no objection, because he appeared by his agents in the said suit, and was party to it throughout. His ordinary lawyers were employed in that affair, and insisted in Court upon his titles, which by the law of Scotland implies a letter of attorney or mandate, and is equal to a personal appearance. And Mr. Montgomery had also a letter of attorney from the appellant, to act in all his affairs as if personally present.

The interest of Mr. Montgomery his agent to the respondent Mrs. Pow's jointure was only a temporary concern, determinable as to him, either by his or her death, and it is her this decree of ranking principally concerns, and she has only got the preference to which she was legally intitled: for she was not only preferable as life-rentrix, upon her prior infefement but upon this separate ground, that her jointure did not exceed her terce, which would have sustained her infeftment against the declarator of non-entry.

The objection to the decree, that several creditors thereby have their rights and titles determined, though not produced till after the date thereof, is jus tertii to the appellant. The decree was obtained at his suit, and the error in date, if any was, is but an error arising from the extract or copy, taken from the record at his own charges, and upon his application. Upon a review and examination of the charges expended by Mr. Montgomery, in obtaining this decree, the appellant in Montgomery's book of accounts, gave him a full and ample

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acquittance thereof. And he has ever since grounded his title in several suits upon that decree, according to his preference therein and has also received several sums of money thereupon; and now because in the event he gets not full payment, it is hard he should require the same to be reversed, which would occasion a new suit among the creditors, after it has been so long acquiesced in, nor is there any error in the date; for though these titles were produced after the 7th of February, and determined accordingly, yet that could be no ground to reverse the decree, because there was thereby no alteration made therein, and they are only thereby ordered to be added to the other creditors who had right by adjudications, and all posterior to the appellant, and they were included in the decree of ranking before the Court allowed the appellant to extract the fame. Thus, none of the creditors were thereby any ways prejudiced, and the date is regulated by an express order of the Court.

Judgment, 7 May 1714.

After hearing counsel, It is ordered and that the petition and appeal be dismissed, and that the interlocutory, and orders, therein complained of be affirmed.

Counsel: For Appellant, Rob. Raymond. Thos. Lutwyche.
For Respondent, P. King. John Pratt.

John Cheisly the heir put in no answer to the appeal.

1714