Scottish Court of Session Decisions

Subject_1 EXECUTOR.

Spence
v.
Creditors of Alcorn

1751, Feb. 20.
Case No. No. 20.

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Spence's wife being decerned executrix to her grandfather, made over the debts to herself and husband, and they sued Alcorn in the inferior Court, and he having corroborated his former bonds in their name, they after raising inhibition on the depending process produced the corroboration in that process and obtained decreet, there being no opposition, which they extracted without confirming,—and thereon adjudged.— Then in a competition of Alcorn's creditors they were preferred on their inhibition, But the wife afterwards dying, the creditors objected, not only that all the diligences were inept, but also that Spence the husband had no right to the debt, because his wife had not confirmed,—and Minto found the diligence void and null. But on a reclaiming petition and answers, I observed that though the interlocutor was agreeable to our ancient practice, yet the act 1690 discharging charges to confirm, and our practice since, has made a great alteration. That now by our judgment in the case of M'Whirter and several others, possession by their nearest of kin without confirmation vests the property in them. That the case of nomina debitorum was not then determined, because it might be of bad consequence to make the naked possession of a bond transfer the right. But I had no doubt, and believed it had been so found, that a nearest of kin could effectually receive payment and discharge a bond without confirmation, which after his death could not be quarelled by the next successor,—and if he could receive payment and discharge, I saw no reason why he might not take the debtor's obligement in his own name;—and if in this case Spencers wife might have discharged the old bonds, and taken a new bond in her own name, I could see no reason why a bond of corroboration should not be equally effectual to her and her assignees. The President was clear of the same opinion, and argued strong,—and in the end we altered the interlocutor almost unanimously, and found that the diligences are not void, that the petitioner has sufficient right to the debt, and therefore preferred him. There came in a reclaiming petition in June, but 4th June we refused to receive it, because after the reclaiming days.