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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mrs Anne Arbuthnot v Archibald Cockburn, Esq. [1789] Hailes 1072 (27 November 1789) URL: http://www.bailii.org/scot/cases/ScotCS/1789/Hailes021072-0730.html Cite as: [1789] Hailes 1072 |
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[1789] Hailes 1072
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 SERVICE AND CONFIRMATION.
Subject_3 Adjudication by a general disponee, without confirmation, ineffectual although preceded by a decreet in foro.
Date: Mrs Anne Arbuthnot
v.
Archibald Cockburn, Esq
27 November 1789 Click here to view a pdf copy of this documet : PDF Copy
[Fac. Coll. X. 169 Dict. 14,383.]
Eskgrove. In the case of Robert Grant, 1784, the Court decided that a confirmation was absolutely necessary; and many such cases have since occurred and have been determined in the same way. A debtor may save a creditor the expense of confirmation; but, if he does not, the creditor must confirm, and, if he fail, it is at his own risk.
Justice-Clerk. Before the Act 1690 there could be no doubt. A general disposition is a good title to pursue, and the debtor may pay; but you cannot compel him to pay unless there be a confirmation; and it follows that you cannot do diligence. Here the debtor did not object indeed, but neither did he make any judicial agreement to dispense with confirmation.
Monboddo. The second decreet was taken after the parties were heard;—this is equivalent to consent.
President. The debt was admitted to be just, but that is not enough. It was not admitted that decreet might be taken without confirmation.
On the 27th November 1789, “The Lords sustained the general objection moved by Mrs Anne Arbuthnot, and found it not necessary to determine the special objections.”
For Mr Cockburn, A. Abercrombie. Alt. M. Ross. Reporter, Henderland. Diss. Monboddo.
The electronic version of the text was provided by the Scottish Council of Law Reporting
