Williamson v Fraser
| Jurisdiction | Scotland |
| Judge | Ld. Mackenzie,Lord Meadowbank |
| Judgment Date | 13 November 1832 |
| Docket Number | No. 3. |
| Court | Court of Session (Inner House - Second Division) |
| Date | 13 November 1832 |
Ld. Mackenzie, Lord Meadowbank.
Executor Creditor—Title to Pursue—Stamp.—
The pursuer Williamson obtained himself confirmed executor creditor of George Urquhart, giving up an inventory, in which there was, inter alia, this item:—‘3. Sum supposed to be due by Archibald Thomas Frederick Fraser, Esq. of Abertarff, as the representative of the late Honourable Archibald Fraser of Lovat, for the meliorations of the farm of Teachnuick and Croyard, under a lease for 19 years from Whitsunday 1809 as to Teachnuick, and from Whitsunday 1808 as to Croyard, granted by the said Honourable Archibald Fraser of the said farms, and which, lease is dated the 14th day of June 1808 years, and by which the said meliorations are restricted to three years' rent of the said farms, being £600 sterling, and of this sum being that effeiring to Croyard is due since Whitsunday 1827 years, and the balance being that effeiring to Teachnuick since Whitsunday 1828, being the terms at which the said lease expired. But Mr Fraser of Abertarff disputes his liability for the claim; and, as it is not yet constituted, can only be sued for by a process at law, which Mr Fraser says he will defend; and as arrestments have been used in Abertarff's hands, by Mr Andrew Williamson of Inverness, to attach any sum that may be due, and for sums larger than the amount of the meliorations—no value can at present be put upon it.’
Thereafter Williamson raised an action for payment against Fraser, who in defence pleaded, inter alia, that the pursuer had no title. It was disputed whether the confirmation had been produced with the summons; but it was admitted that before the debate on the preliminary defence, it had been seen by Fraser, who made no demand to be allowed to give in additional defences, but proceeded with the discussion before the Lord Ordinary. His Lordship repelled the preliminary defence, and found the defender liable in expenses, he having intimated his intention to reclaim.
Solicitor-General Cockburn, in support of the reclaiming note, contended, that under the provisions regarding inventories of the stamp acts (44 Geo. III. c. 98, and 48 Geo. III. c. ,) no executor could pursue without having given up an inventory, so as to regulate the duty chargeable against him, while, in the present case, the pursuer had truly excluded this claim so far as the stamp laws were concerned, having...
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