Scottish Court of Session Decisions

Subject_1 INDUCIÆ LEGALES.
Subject_2 SECT. III.

Annus Deliberandi.

Edward Summers
v.
Simson and Gardner

Date: 23 December 1757
Case No. No 42.

The objection, That diligence was intra annum deliberandi, not personal to the heir, but competent also to creditors.

A person left a daughter, and his wife pregnant, who brought forth a post-humous son. This son died a few months after his birth. Found that in computing the annus deliberandi, the time between the father's death and the birth of the son was not to be reckoned.

Click here to view a pdf copy of this documet : PDF Copy

On the 23d March 1751, Thomas Summers died considerably in debt, leaving a daughter Margaret, and his wife with child, who, on the 23d October thereafter, was delivered of a posthumous son, named Thomas.

On the 28th January 1752, Simson, one of the creditors of Thomas Summers the father, took decreet of constitution against Thomas the son, as charged to enter heir to his father, and on the 16th June 1752, decreet of adjudication. Thomas the son died in August 1752.

In a competition betwixt the creditors of Thomas Summers, it was objected by Edward Summers, one of them, to this diligence, That it had been taken intra annum deliberandi.

Answered for Simson, The objection was never made by Thomas Summers, the son, to the diligence. The objection was personal to the heir himself; and if he did not make it, no competing creditor could found upon it.

Replied for Edward Summers; By the nullity of the two decreets, there was a jus quæsitum to him, which the failure of the heir to object, could not disappoint. The objection, That decreet was taken intra annum deliberandi, is known to make the defender as much free from the effects of the decreet, as the objection, That a bond wanted writer and witnesses names, is known to make him free from the effect of the bond. In the last case, a creditor can object to the bond, though the defender did not; and in the other case, he ought to be allowed to object to the decreet, though the defender neglected to do it.

The objection of minority and lesion, or on the head of interdiction, appear to be abundantly personal; yet the creditors of a minor, or of an interdicted person, may make use of these objections for themselves, bring a reduction on them, and turn the fruits of them to their own account. The objection of death-bed is, from our old law-books, and the nature of the thing, as personal as can well be conceived; and yet it is competent to the creditors of the heir to reduce ex capite lecti; Creditors of Balmerino contra Lady Coupar, No 25. p. 3203. And from the analogy of law in many other cases, the bent of it appears to be, to give creditors the power, not only of affecting every right in their debtor, but likewise of pleading, each for himself, every relevant ground of challenge which the debtor could have pleaded.

With regard to the present species of objection, if the validity of it was made to depend on the heir's proponing or not proponing it, this would be giving a power to the heir, and not to the law, to unhinge interests, and create preferences. Or even, though the heir was not partial, yet chance preferences might happen, altogether contrary to equity. Every one knows, that he ought not to attack the heir for a year, and that adjudications within year and day of each other are equal; trusting to this, a creditor might not use his adjudication till the end of the second year, and during the first, another creditor has proceeded: If it was deemed that the objection was only personal to the heir, then it might happen, that by the heir's neglecting to use it, a creditor might be out out altogether, who had conformed himself exactly to the known procedure of law.

“The Lords found Simson's adjudication null, as intra annum deliberandi” In this competition it appeared, that Gardner, another creditor, had, on the 9th of May 1753, taken decreet of constitution against Margaret Summers, as charged to enter heir to her father, and on the 7th of August thereafter adjudged.

Objected by Edward Summers to this diligence, It was taken intra annum deliberandi of the year which Margaret had, after the death of her brother Thomas the son.

Answered for Gardner, That adding together the time betwixt the death of Thomas the father, and the birth of Thomas the son, when Margaret was heir; and the time betwixt the death of Thomas the son, and the date of the diligence, when she likewise was heir; she had more than a year to deliberate.

Immediately after the death of any person, the annus deliberandi must run every moment against some person or other; and as it is an established point, That it does not run against a child in utero, it must have been running against Margaret the daughter.

“The Lords found Gardner's adjudication void, as intra annum.”

For Edward Summers, J. Dalrymple. For Simson and Gardner, Macqueen. Fol. Dic. v. 3. p. 317. Fac. Col. No 76. p. 131.