United Kingdom House of Lords Decisions

The Court below, in conformity with the order of the House of Lords, required the opinions of the whole Court. That opinion, which was drawn by Lord Corehouse, but not signed by him, on account of indisposition, was in these terms:—

“Without resuming the facts of the case, or the proceedings either in this Court or in the House of Lords, we proceed to answer the questions proposed in the remit:—

I. The opinion of the Court is directed to be taken “on the question of the septennial prescription.” The act 1695, c. 5, by which that prescription was introduced, provides, “That no man binding and engaging for hereafter, in any bond or contract for sums of money, shall be bound for the said sums for longer than seven years after the date of the bond.” It is manifest that this act cannot apply to a bond of caution granted for the faithful exercise of an office, because at the date of the bond there is no specific sum due. The bond is not granted for money at all, but to secure the performance of the officer's duties; and though his malversation or neglect may give rise to a claim of damages, which comes to be estimated in money, the obligation of the principle in its nature is purely ad factum prœstandum. Farther, the limitation of the right of action cannot be restricted to a period of seven years from the date of the bond, because the office, as in this case, may be of indefinite endurance, and may exist for half a century. Accordingly, the point is no longer open for discussion, having been decided as early as the case of Fleet, January 5, 1709; and it is laid down as settled law by all the authorities since the date of that decision.

The defenders try to evade the rule in this way. They say that the cautionary obligation of Hugh Bremner the elder, ended by his death in 1804; that the sum which was due in consequence of the curator's intromissions might then have

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been ascertained; and that an obligation as for a liquid sum, ought in equity to be held as commencing at that period, and subject to the septennial prescription afterwards. We are of opinion, for reasons which will be immediately stated, that the obligation of the cautioner did not end by his death, but was transmitted against his representatives. Farther, although it had ended, which might have been the case if his representatives had withdrawn from the suretyship, which, like himself, they were entitled to do, the debt was not then liquidated, nor any attempt made to do so, before the present action was raised. Lastly, although the debt had been liquidated at that time, as no new bond was granted for the sum, from the date of which the currency of the septennial prescription could commence, there is no room for the operation of the statute. If the cautioner or his representatives had wished to have the benefit of the Act 1695, the course which they ought to have followed was obvious. They ought to have intimated that they withdrew their security ; a settlement of accounts would then have taken place; the sum for which the factor was liable would have been ascertained; and for that specific sum he and his cautioners should have granted a bond. In that way the original obligation would have been extinguished by novation; and that which was substituted in its room would have been valid for seven years only from its date. But the present action is exclusively laid on the original bond to execute the office, and it could be laid on no other ground,—a bond incapable of suffering the septennial prescription, and the amount of liability under which is even yet undetermined. The cases of Anderson and Moreland, to which the defenders have referred, give no countenance to their argument. In Anderson's case, the cautioner was bound for the payment of a specific sum, due under a composition-contract, and for nothing more, an obligation which falls expressly under the words of the statute;

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and the case of Moreland did not relate to the septennial prescription at all.

In answer to the first question, therefore, we are clearly of opinion that the claim of the pursuer is not extinguished by virtue of the Act 1695.

II. The opinion of the Court is directed to be taken “on the question of the several liabilities of Hugh Bremner the younger, Grace Sanderson and Thomas Sanderson, and the said Alexander Greig, deceased, both in respect of and assuming the liability of the late Hugh Bremner, to be as found by the said interlocutor of the 6th of July, 1832, and in any other respect, regard being had to the statement of the respondent's counsel at the bar of this House, that Hugh Bremner the younger was liable for the moneys received by him, after attaining twenty-one years of age, from the estate and effects of Hugh Bremner the elder.”

It will be observed, that Grace Sanderson and Thomas Sanderson were called as defenders merely pro forma, and have long since been assoilzied by a final interlocutor. It is unnecessary, therefore, to say any thing of their liabilities.

Whether the statement of the pursuer's counsel at the Bar of the House of Lords implied an admission that Hugh Bremner the younger was liable no farther than for the moneys received by him after attaining the age of twenty-one years, it is for their Lordships to judge. As the minute given in by the pursuer's counsel is not before us, we shall assume that no such admission was made.

With regard to Hugh Bremner the younger, the first point for consideration is, Whether the cautionary obligation undertaken by his father ended at his father's death? We are of opinion that it did not, but that it was transmitted against his representatives. The words of the bond itself appear to us conclusive upon this point. The factor, and Hugh Bremner

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the elder, his cautioner, “bind and oblige us, jointly and severally, our heirs, executors, and successors whomsoever, that I, the said James Bremner, shall do exact diligence in performing my duty as factor loco tutoris foresaid.”

Farther, it is a general rule in the law of Scotland, that all obligations undertaken or incurred by the ancestor transmit against his representatives. There are some exceptions to that rule: for example, penal actions do not transmit, unless there has been litiscontestation in the lifetime of the ancestor. There are others which it is unnecessary to mention, because they have no connection with the present case. Under the term ‘obligation,’ is comprehended not only pure debts, that is, sums of money due and payable at the ancestor's death, but future and contingent debts; also all burdens or liabilities to which he is subject, either as principal or cautioner. In the case of heirs and executors properly so called, the extent of the obligation so transmitted is or may be limited; for if the heir enters cum beneficio inventarii, or if the executor is regularly confirmed, neither is bound beyond the amount of the inventory. But if these precautions have been neglected, the representation is universal and unlimited.

To get quit of this responsibility, which the express words of the bond of caution, as well as the general principle of the law of succession, imposed upon him, Mr Bremner, junior, has resorted to various pleas, all of which, in our opinion, are groundless.

He maintains, that an obligation undertaken by the cautioner for the performance of an office, is one out of which no claim arises until a violation of the duty has been committed; and as there was no violation of duty in this case before the death of the cautioner, there was no obligation then existing which could transmit against his representatives. In support of this plea, passages are cited from Stair and Erskine, in which it is

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said that conditional obligations are but obligations in hope, and do not begin to oblige until the condition exists.

The obvious answer is, that the defender is here confounding the consequence of an obligation with the obligation itself. The cautioner for the performance of an office cannot be called upon to pay any thing until the duties of the office have been neglected or transgressed. But the obligation to pay when that contingency arises, exists from the date of his bond. The responsibility is undertaken at that time, and it is that responsibility which transmits from the ancestor to his representatives. Accordingly, there is not only no authority to be found in the books, that obligations of this kind do not stand, in respect of transmission, in the same situation with every other species of obligation, but there is a long and uninterrupted series of decisions by which the reverse is established.

The citations from Stair and Erskine to which the defenders refer, are plainly misapplied. Both authors, in the passages quoted, are treating of the incompetency of raising the diligence of inhibition upon contingent debts; and they state what in the ordinary case is manifest, that it would be inconsistent with equity to place the heritable property of a contingent debtor under an embargo, and to deprive him of the use of it for an indefinte period, while it was yet uncertain whether he would ever have any thing to pay to his contingent creditor. Accordingly, inhibition is always recalled in such circumstances, unless the debtor is bankrupt, or vergens ad inopiam. But although a contingent debt is in the general case not a good ground for that diligence, there is no reason why a contingent obligation should not be transmissible like any other obligation against representatives.

It is unnecessary to detail all the precedents upon this point. They are stated at great length in the pleadings for the pursuer; and we think the defender's attempt to explain them

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away, has been eminently unsuccessful. We shall advert to some of those cases in the sequel.

It appears from what passed in the House of Lords, that the defender, in aid of his argument, had referred to a maxim, that representation in moveable goods is unknown in the law of Scotland. There is indeed such a maxim, but it is entirely foreign to the matter now under consideration. When we say, that there is no representation in moveables, we mean that succession in moveables proceeds per capita, and not as in heritage, per stirpes. If a man has three daughters, and one of them predeceases him, leaving a child, the child comes into the mother's place, and gets the same share of the heritage as her mother would have had. It is not so in moveables. In the case put, the two surviving daughters would be the only executors, while the child of the predeceasing daughter would take nothing: or to state it in the antiquated, but perspicuous language of Sir Thomas Hope:—

“In testaments non est jus representandi, as there is in lands, and heritage; but the nearest in degree of kindred excludes all others of a farther degree, albeit more near quoad successionem to lands and heritages; for in heritage there is jus representandi, and the son, oye, &c. has the same place or right that their father had; but, in testaments, the father-brother, or father-sister, will exclude all the brethren and sisters' bairns, and will have the sole benefit of the executry.”

But while the successors of the executor do not represent him actively, that is to say, are not entitled to his rights and privileges, nothing is more certain than that they represent him passively, or, in other words, are responsible for his debts and liabilities.

But the main plea on which Mr Bremner relies is, that he is not sought to be subjected as the heir or executor of his father, but on the passive title of villous intromission with his father's estate. He maintains, that whatever may be the case

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as to heirs and executors, the vitious intromitter is liable only for debts payable by the deceased at the period of his death, and he says that no debt was payable when his father died, because there had been no violation of duty by the judicial factor at that time; that although a current and unprestable obligation may transmit against heirs and executors, there is no authority for holding that it transmits against vitious intromitters; and that the words of the bond, by which his father imposed the cautionary obligation, not only upon himself, but his heirs, executors, and successors, does not comprehend those who are sued on this passive title.

We are of opinion, that not one of these propositions is well founded. It is true, that the liability of a vitious intromitter is not exactly co-extensive with that of an executor. For example, as this passive title was introduced for the protection of creditors, it is not available to donees. On that ground, legatees, or children for provisions purely gratuitous, cannot take benefit by it; nor can widows for their jus relictœ, or children for their legitim, because they are not creditors, but held to have joint rights in the estate of the deceased with his representatives. But, in other respects, a vitious intromitter stands in the same relation to creditors as an executor unconfirmed. It is true that both Stair and Erskine use the expression, that vitious intromitters are liable in solidum for the debts of the defunct. But it will be observed, that the term ‘debt’ is taken in these passages in its most extensive sense, comprehending not only debts due, and prestable at the death of the ancestor, but all obligations and liabilities whatever. It has the same signification as in the Roman law;—

“ Hoc verbum Debuit omnem omnino actionem comprehendere intelligitur; sive civilis, sive honoraria, sive fideicommissi fuit persecutio.”

Therefore Mr Bell, with strict correctness, says:—

“Whenever any one, having access to the effects and moveable

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estate of a person deceased, unwarrantably takes possession of, and intermeddles with those funds, the law infers a universal responsibility from the uncontrolled intromission.”

It may be added, that nearly two centuries and a half have elapsed, since it was settled in the law of Scotland, that in questions with creditors, the liabilities of the vitious intromitter are as extensive as those of the executor, while he has not the protection which a confirmation duly expeded gives to the latter. ‘Ante hunc confirmationem,’ says Craig, “si se bonorum administrationi commiscuerit universalis tum habetur intrommissor, in eumque non minus quam in verum executorem omnes actiones, competunt; ipse tamen agere non poterit, donec in executorem fuerit confirmatus”—“itaque executor nomen juris est, intromissator nomen facti: hic in solidum pro debitis hereditatis tenetur, ille tantum pro viribus hereditatis.”

The defender having laboured to prove that the transmission of a prospective cautionary obligation against the heir and executors of the cautioner, arises solely from the circumstance, that it is imposed in express terms in the bond of caution, the principal binding not only himself, but his heirs, executors, and successors, tries to escape upon the plea, that he, as a vitious intromitter, is neither heir, executor, nor successor, and therefore not falling under the words of the bond. But this pretence is singularly unfortunate; for we are told by the author last quoted, that the term successor in such obligations applies especially to intromitters. Speaking of adjudication as a depending action, he says, “Itaque si alterius persona morte, vel rebellione, vel juris cessione mutata sit, et actionem vel hæres, vel executor, vel successor (quem intromissorem dicimus,) vel quilibet alius particularis successor, qui jus actionis nactus fuerit ex ea sententia, velit ad actionem procedere non potest,” &c.

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If an express obligation, therefore, were requisite, which we do not consider it to be, it is clear that Hugh Bremner the elder, under the designation of ‘successors,’ imposed an obligation on vitious intromitters, as well as every other species of successor, not included in the terms heir and executor.

But it is farther pleaded, in point of fact, that the defender, Hugh Bremner the younger, is not to be held as a vitious intromitter. Certainly there would be room for that inference, if his intromission had been confined to the advances made to him out of the estate before he attained the age of fourteen years.

No pupil can be a vitious intromitter, because such intromission is a delinquency which a pupil is incapable of committing. A defence of somewhat the same nature might have been urged also, if the intromission had taken place during the defender's minority; for though he would thereby have been rendered liable in the first instance, he might have obtained relief by a restitutio in integrum raised during his minority, or the quadriennium utile which followed it. In both cases his liability could not have extended farther than in quantum lucratus fuit. But neither of these pleas is supported by the fact. The intromission of his guardian, of which he had the benefit, was neither confined to his pupillarity nor minority; no action of reduction or restitution was brought within the anni utiles; and what is of still more importance, it appears from Mr Greig's accounts, that the intromission was continued by the defender, Bremner, himself for several years after he had attained majority. He took benefit from his father's succession to the amount of L.1511, 15s. 4d.; part of that was board, at the rate of L.60 per annum, for the period of twenty-four years, during three years at least of which period, therefore, he was of age. In the years 1823, 1824, and 1825, after he attained majority, he received nearly

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L.900 from his father's estate. As an intromitter, therefore, of full age, he neither was nor could be restored against his own acts, and he is in exactly the same situation as if he had been major at his father's death. Neither is there the slightest pretence for pleading a colourable title, on the ground that Mr Greig, from whom he received these sums out of his father's estate, had been his tutor and curator; for Mr Greig's intromissions did not merely proceed from his office of tutor or curator, but the defender, Bremner, granted also a commission to Mr Greig to uplift the whole estate, funds, and effects of his father, an act against which he never sought or obtained restitution. This, therefore, is a manifest case of intromission by a person of full age, and which inferred a universal representation.

There are other pleas on the part of Mr Bremner to which it is scarcely necessary to advert. Thus, we are of opinion that the claim against the defenders is not barred by mora or neglect. The lunatic could not call the parties to account, and it is not clear that any of her relations had either title or interest to do so. The case is altogether different from that of a judicial factor in a process of sequestration or ranking and sale, acting for behoof of a body of creditors, and under their control. It is their duty to see that the factor executes his office correctly, and if they neglect to do so for a long period, or abandon it altogether, it is possible the cautioner may have grounds for pleading a personal exception against them. It is otherwise with the judicial factor of a lunatic.

Still less is there room to argue that the balance due on the factorial accounts at the cautioner's death was extinguished by subsequent payments. The balance due in 1804 went on from year to year increasing.

Equally unavailing are the objections of the defenders to the form of the action. They say that Hugh Bremner the

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younger, voluntarily undertook the obligation of cautioner at his father's death, because he did not withdraw from it, which he had a right to do, and therefore the summons ought not to have been laid on the passive title of vitious intromission, but on the ground that he was lucratus by the succession. We are of opinion, that the defender Bremner was a vitious intromitter; that the summons was correctly laid on that title, and could be laid on no other ground, for it was in consequence of his intromission alone that he became liable for his father's obligation as cautioner, and exactly to the same extent as his father was liable; and that the restriction of the claim (assuming it to have been restricted) whether by the consent of the pursuer, or on some equitable consideration, is no impeachment of the competency or correctness of the summons.

With regard to authorities, it is enough to refer to Mr Bell, who has collected the substance of them, as applicable both to caution for the performance of an office, and for a cash-account to a bank. He states, that in both the obligation transmits against representatives, not merely for the debt as it stood at the cautioner's death, but prospectively, as if they were the original obligants.

The case of the Commissioners of Excise v. Mitchell, is a direct precedent. A person had farmed the excise duties, and quoad hoc was an excise-officer. The heir of his cautioner was found liable in what fell due after the cautioner's death. The tack endured for six years, and a doubt was started obiter on the Bench, whether the decision would have been the same if the officer had been removeable at pleasure. Whether that doubt was well founded or not, is of no consequence here, for the judicial factor was not removeable at pleasure. His office continued till the lunatic's death or reconvalescence, and he could not be removed but for misconduct.

Equally conclusive is the case of Erskine. The obligation

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is said to have been directed against the cautioner and his heirs, though that is not expressly stated in the report. But if it was so, the same circumstance occurs in this case, for the cautioner binds himself, his heirs, executors, and successors ; and we have seen that an intromitter, by the law of Scotland, represents the defunct as universally as either heir or executor, and that the term successor is peculiarly applicable to him.

A third precedent is the case of the University of Glasgow v. Sir William Miller, which is also in every material circumstance identical with the present, holding, as we have just metioned, a vitious intromitter to be a successor and universal representative.

Farther citation is unnecessary. There is not one precedent of a different aspect.

The late Mr Greig, as a vitious intromitter, was in the same predicament as Mr Bremner the younger, with this exception, that he was of full age when his intromission commenced.

Therefore, upon a review of the whole case, we are of opinion that both defenders are universally liable for the whole sum due by the late James Bremner at his death, with interest.

It is for the House of Lords to judge whether this claim, as against Mr Bremner, was restricted expressly, or by implication, to the extent of the sums which he received. With regard to Mr Greig's trustees, there is no pretence for such restriction.

C. Hope.

Ad. Gillies.

J. H. Mackenzie.

John Fullerton.

James W. Moncreiff.

F. Jeffrey.

H. Cockburn.

John Cunninghame.”

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