Fyffe v Fergusson
| Jurisdiction | Scotland |
| Judgment Date | 06 July 1842 |
| Docket Number | No. 250 |
| Date | 06 July 1842 |
| Year | 1842 |
| Court | Court of Session (Inner House - First Division) |
Lord Murray. B.
Title to Pursue—Confirmation—Foreign.—
SEQUEL of the case reported May 25, 1838, (16 S. 1038,) which see.
The judgment of the Court was affirmed on appeal, except as to the accumulation of interest; and the defender now insisted that, before he made payment, the pursuers should complete their title, by following up their decree-dative with a confirmation in the Commissary Court in common form.
The pursuers offered to prove the will in the proper Indian Ecclesiastical Court, and contended that, as the defender had been resident there at the testator's death, their title to the debt should be made up in the Indian, and not in the Scotch Courts.1
The defender pleaded, that, as no title to the debt had been made up before he left India, it was now too late to make up a title in the Indian Courts. At all events, as the pursuers had all along been suing in virtue of the decree-dative, they could only obtain payment by completing that title.2
The Lord Ordinary made avizandum to the Inner House with the question of title.
A Scotsman died in India leaving property both there and in Scotland; one of his debtors then resided in India, but came to this country before any title was made up to the debt; he was sued in the Court of Session by persons who had obtained a decree-dative decerning them executors qua legatees to the deceased, and decree was pronounced against him:—Held that before extract the pursuers must produce a confirmation as execntors qua legatees to the deceased.
1 Daniel v. Luke, (3 Dyer, 505;) Attorney-General v. Dimond, (1 Crompt. & Jervis, 356;) Attorney-General v. Hope, (1 Crompt., Mees., & Ros., 350;) Attorney-General v. Bonwens, (4 Mees. & Wels., 171;) Pearse, (9 Sim. Chanc., 430.)
2 3 Ersk. 2, 42; Advocate-General v. Thomson, Feb. 10, 1841, (ante, Vol. III. p. 1309;) Robertson on Personal Succession, p. 247; Tyler v. Bell, (1 Keene, 826;) Lowe v. Fairlie, (2 Maddocks, 102;) Logan v. Fairlie, (2 Sim. & St. 292, and 1 Myln & Cr. 59.)
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