Craig — Petition, 9 Aug 1773

August 9. 1 7 7 3. UNTO THE R I G H T HONOURABLE. T he Lords of Council and Session, T H E P E T I T I O N O F A R C H I B A L D CRA I G Merchant in Elgin, Humbly Sheweth T H A T the petitioner, of this date, obtained decreet be­fore this court, against Mrs Emilia Brodie, for pay- ment of L. 30, 8 s. Sterling, and interest thereof, due by a bill accepted by her to the petitioner, upon the 22d of June 176 1. That said Mrs Emilia Brodie having died, the petitioner brought an adion against Miss Margaret Brodie her daughter, for payment o f the above sum, deducing a partial payment of L. 10 Sterling, as representing her mother, and as being liable upon the passive titles, having intromitted with her means and estate. The cause having come before the Lord Monboddo Ordinary, the defender craved his Lordship would sist process, till a mul­ tiple-poinding, brought by her, should come in; and the Lord Ordinary was accordingly, o f this date, pleased to grant her de­ mand. The cause being afterwards called, it was represented for the defender, That she had now raised a multiple-poinding, in which she had produced a confirmation, as executor to her mo- ther; ther; and therefore it was craved, that the Lord Ordinary would remit this process to the process of multiple-poinding. But it being stated for the petitioner, That the present process was the first in court, and was therefore to be held the leading process; and that if the defender did not produce her confirmation in this process, and insi st upon any defences she had, she fell to be held as confessed, the Lord Ordinary was pleased, in respect this was the leading process, and that the defender did not chuse to pro­ duce her confirmation in this process, nor plead her defences in causa, to decern against her in terms of the libel. The defender represented against this interlocutor; but not ha­ ving yet produced the confirmation, the Lord Ordinary, of this date, granted warrant for letters of incident diligence, at the de­ fenders instance, for recovering the above-mentioned confirma­ tion, till the 7th of February next. The cause having been again inrolled, and no confirmation ha­ ving been produced, the Lord Ordinary of new ordained the de­ fender to produce her confirmation against the 20th February then current; and the cause having, of this date, been inrolled, the procurator for the pursuer resumed the former procedure, and represented, That the defender had now got upwards of five weeks to produce her confirmation, which the had never yet done; and therefore it was craved, that the Lord Ordinary would hold her as confessed, and refuse the representation. The defender failing to compear, the Lord Ordinary pronounced the following interlocutor. " Holds the representer as confessed, refuses the representation, adheres to the interlocutor represented against, and declares he will receive no further representation, without paying an amand of 20 s. Sterling.” The defender thought proper, of this date, to give in a repre­ sentation against this interlocutor; and the Lord Ordinary, upon hearing parties, of this date, was pleased to pronounce the fol­ lowing interlocutor. “ The Lord Ordinary decerns against the defender for the sums libelled, to the effect only of attaching the executry-funds of her mother confirmed by her.” Against this interlocutor the petitioner gave in a representation, praying, that his Lordship would alter his interlocutor, in so far as he had decerned against the defender for the sums libelled, to the effect only of attaching the executry-funds of her mother, confirmed by her and praying, that his Lordship would sim- ply ply decern against the defender for the sums libelled. In this representation it was stated, that his Lordship’s interlocutor seemed to proceed upon the supposition, that the defender had confirmed to her mother; but that in fact this did not appear to be the case, at least no confirmation was produced; and there­ fore, as the summons proceeded against the defender, as being liable on the passive titles, and as she never had denied her ha­ ving intromitted, it was submitted, that there could be no reason for his Lordship altering his former interlocutors, holding the defender as confessed, and decerning against her in terms of the libel. T he Lord Ordinary, upon advisin g the representation, with answers, pronounced the following interlocutor. “ The Lord Ordinary having considered this representation, with the answers; in respect it is not denied that the confirmation was expeded, though an extract of it is not produced; and in re- spect of the process of multiple-poinding, where the creditors are called to produce their interests, which shews that the de­ fender is not a vitious intromitter, but desires fairly to account for the defunct’s effects, refuses the desire of the representation, and adheres to the former interlocutor. T he petitioner having represented against this interlocutor, the Lord Ordinary was, of this date, pleased to refuse the same; su- perseding extract till the third sederunt-day of November next. Of these interlocutors the petitioner humbly craves your Lordships review. In the first place, It will be observed by your Lordships, that the defender offers no objections to the debt itself. It is a fair bill accepted by the defender’s mother, for a ju st and onerous cause: and though it has been due above these twelve years, the petition­ er has not been able to recover payment of it. But though the defender has made no objection to the debt, she has pleaded, that she is not personally liable for the same, but is liable only as ex­ ecutrix confirmed to her mother, and therefore cannot be subject- ed ultra vires inventarii. With regard to this, your Lordships will observe, that this de­ fence rests entirely upon a fact. The law with regard to this matter is sufficiently clear. The defender has never disputed, that she has intromitted with her mother's effects; she falls, therefore to be personally liable for her mother’s debts, unless she can show two things, 1st, That she has made up an inventory of her mo­ ther’s ther’s effects, and has been confirmed conform to that invento­ ry; 2dly, That the inventory has been already exhausted by the claims upon her mother's subjects. In the present case, therefore, it occurs to be inquired, how the fact stands. Has the defender made up a complete inventory of her mother’s effects, and been confirmed executrix to her mother, conform to that inventory? and has the inventory made up of her mother’s effects been alrea­ dy exhausted? How the fact stands with regard to these particulars, your Lord- ships have been already informed. It does not appear, that the defender has ever been confirmed executrix to her mother; for she has not produced her confirmed testament, either in this pro- cess, or in the process of multiple-poinding. And though she had been confirmed, it does not appear, that any part of her mother’s effects have been exhausted by claims brought against her. This being the fact, the petitioner apprehends, that, agreeable to the principles of law, it follows clearly, that instead of the petitioner’s being intitled to obtain a decree against the defender, to the effect only of attaching the executry-funds of her mother confirmed by her, he is intitled to decreet against her, in terms of the libel. The Lord Ordinary seems to rest his interlocutor of 27th July, partly upon this, that the petitioner had not denied that the con­ firmation had been expede, and partly upon this, that the defend­ er had brought a process of multiple-poinding, which removed all suspicion of her being a vitious intromitter. With respect to this, the petitioner absolutely denies that any confirmation was made by the defender, as executor to her mo­ ther, as least in so far as he knows. Your Lordships have seen the repeated orders of the Lord Ordinary, ordaining her to produce her confirmation. The defender has long ago obtained letters of incident diligence for recovering the same; and it cannot be doubted, that had ever the defender been confirmed, her confir­ mation would long ere now have been produced. T he defender has pretended, that upon her mother’s death, it was agreed by her creditors, that she should act for their behoof; and for that purpose, after confirming a small part of the execu- try, that she should intromit with the rest; and that, in prosecu- tion of this plan, she gave orders for a partial confirmation. The petitioner must say for himself, that he knows nothing of any such agreement among the creditors; and if such agreement was • 9 was ever made, he was no party to it, and consequently it can have no sort of influence upon the present question. Let it be supposed, however, that the defender had not only given orders for a partial confirmation, as she has alledged, but had really confirmed a part of her mother’s effects, the peti­ tioner must ask, what would be the consequence of this? It is not denied, that the defender had intromitted universally, and it is laid down by all our lawyers, that where an executor confirmed intermeddles with more than he has confirmed, he in- curs a passive title, fraud being in the common case presumed from his not giving up an inventory of the full subject intromit­ ted with. Even in this view of the case, therefore, granting the defender was confirmed to a part of her mother’s effects, yet if she has intromitted with more than she has confirmed, she must be considered as having incurred an universal passive title. But granting that your Lordships should think, in the present case, this doctrine too severe; yet still there can be no doubt that the defender must be liable for her mother’s debts to the extent of the inventory confirmed; and if she has had any intromis- sions beyond what she has confirmed, she must surely be lia­ ble also to that extent. By the defender’s universal intromis- sion, the effects of her mother are no longer in bonis defuncti. The petitioner cannot attach them for payment of his debt; he can have rccourse only against the defender, who has intromitted with them, and sue her for payment; and, upon this considera- tion alone, he is hopeful your Lordships will be satisfied, that he is intitled to obtain an alteration of the Lord Ordinary’s interlo­ cutors, decerning against the defender, to the effect only of at­ taching the executry-funds of her mother confirmed by her. Granting that the defender were confirmed; yet still the peti­ tioner is advised, that an executor is liable primo venienti; and that where there is no objection to the debt claimed, an executor must be personally liable for payment, unless he alledges, and proves, that the effects of the defunct, intromitted with by him are ex-J hausted by payment, in consequence of prior decreets obtained a- gainst him. The defender, in this case, makes no such allega­ tion: all she alledges is, that there are other creditors who may claim; and that since the commencement of this process, she has raised a multiple-poinding. But surely this can afford her no de­ fence against the present demand, unless she is able to prove, that the other creditors have already constituted their debts by decreets, and and recovered their payment. But as that is not the case, your Lordships decreet in this process must be a sufficient warrant for the defender to pay this debt; and will afford her a relevant defence against the other creditors, if there are any, when they come to make their demand; and i f these creditors shall find themselves aggrieved, they will no doubt either apply to have the multiple­ poinding remitted to this process, or produce their interests, and compete with the pursuer in this process. But in fact it is belie­ ved the process of multiple-poinding is a mere pretence to stave off the petitioner’s ju st claim, as there have been no proceedings in it of any consequence since it has been called. Upon these grounds, the petitioner is hopeful he will obtain an alteration of the Lord Ordinary's interlocutors; and that your Lordships will decern against the defender in terms of the libel. The defender has confessedly intromitted with the whole effects of her mother. It does not appear, that ever she confirmed exe­ cutrix to her mother; the petitioner has been informed she never did; and granting the defender had confirmed, yet as it is not al- ledged, that her mother’s effects are exhausted by claims brought against her, the petitioner must have right to decreet for the whole sum libelled against her. May it therefore pleas e your Lords hips, to alter the Lord Ordinary’s interlocutor above recited, and to decern against the defender per­ sonally for the sums libelled. According to justice, &c. W I L L. C R A I G.