Scottish Court of Session Decisions

Subject_1 SOLIDUM ET PRO RATA.
Subject_2 SECT. XVII.

Wrongous Intromitters. - Delinquents.

Sutherland of Kinminity,
v.
Wiseman and Others

Date: 13 June 1716
Case No. No. 109.

An agent for a lady having caused anti-date an execution of an edict for confirming her executrix, and she having made use of it, the Lords for then both liable to the party injured in his damages, conjunctly and severally.

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The late Sutherland of Kinminity, the pursuer's grandfather, having deceased while the pursuer was abroad, the Lady Artamfoord, the defunct's sister, intending to raise an edict before the Commissary of Murray for comfirming her executrix to her brother, Wiseman the defender, in the interim, acting as commissary-depute, inventories the goods and papers, seals up the cabinets, &c. and delivers fifty guineas to Crimond the lady's son, and takes his bond for the same, payable to whomsoever should be found to have best right to the executry. But the pursuer being on the road homeward to Scotland, the edict is raised and executed only on the 7th of January, 1711; but the officer having signed the execution blank, it was afterwards, by Wiseman's orders, filled up, as of the date the last of December; so that it being called the 11th of January, the Lady was decerned on the 16th, and confirmed on the 25th; and Kinminity's defences (who was then arrived,) not so much as admitted, nor marked on the decreet; but he thereafter obtains reduction of this decreet before the Commissaries of Edinburgh, and now insists before the Lords for damages, &c. against the Lady and Mr. Wiseman; which damage he alleged they had ocasioned by ante-dating and using their said execution.

Answered for Wiseman the defender: 1 mo, That the pursuer was not lesed by the wrong date of the execution; for the preference was not given on account of priority of diligence, nor did the Commissaries reduce the decreet upon that account; but the pursuer's aunt was preferred upon the Commissary of Murray's mistake, that the sister excluded the grandchild, as being a degree nearer the defunct; which wrong notion is the ratio decidendi of the Commissaries of Edinburgh in their reduction; so that, at whatever time the pursuer had claimed the office, the Commissary of Murray would have preferred the sister as nearer; and the mistake in the execution occasioned not prejudice to the pursuer. 2do, That, however the pursuer was cited, yet he was sufficiently certiorated, appears by his Compearing by his procurator, proponing defences, &c. which were over-ruled.

Replied for the pursuer: That, though the question was not anent priority of diligence, yet the gaining of nine days by such an illegal practice was the occasion of the pursuer's being, debarred from his right by a confirmation which would never have taken place, if he edict had not been called within the lawful days, after the true execution, thereof had elapsed: To the 2d, answered, That the very allegeanee was an argument against the defender, in so far as the pursuer's compearing by his procurator to stop the confirmation, was an evidence that he would have come time enough to propone his defences, if the defender, by his unwarrantable conduct, had not prevented him.

Duplied for the defender: That, in the reduction before the Commissaries of Edinburgh, there were no expenses craved, and it was against both justice and form to raise a process for the expense and damage of another; for so a pursuer may go on in infinitum, seeing every process requires expenses; and such a process as this was expressly refused to be sustained by the Lords, 26th January, 1709, Menzies against Gordon, No. 88. p. 6535. voce Implied Discharge and Renunciation. Nevertheless,

“The Lords found the defenders liable, conjunctly and severally, in the pursuer's damages.”

At advising of the above process, it occurred to the Lords, that the above James Wiseman, one of the defenders, had unwarrantably acted in the name of the Commissary without a commission, who alleged, that what he did was by commission; and a term being assigned to him for proving thereof, the term was circumduced or not proving: Wherefore,

“The Lords granted warrant to cite him before them, to answer for his said unwarrantable procedure; and recommended to the Solicitor to execute this order, and to the Lord Advocate to prosecute the same.”

Act. Dun. Forbes. Alt. Horn. Gibson, Clerk. Fol. Dic. v. 2. p. 385. Bruce, v. 2. No. 1. p. 1.