Heirs portioners ought to share alike in good and bad debts, and cannot be forced to divide.
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In mutual compts and reckonings betwixt William Dundas, who had married a daughter of the Laird of Wolmet's, of his second marriage, and Major Biggar, who had married the eldest daughter of the first marriage, there being a question anent the method of accounting, upon this ground, that there being a tack of the coal of Wolmet set to the seven daughters, (whereof there were three of the first marriage, and four of the second); for their provisions, the rent of which coal, by the space of three years, was intromitted with by Dankeith, and thereafter, the rent was intromitted with by Moristoun by the space of eight years, against whom decreets were recovered, wherein allowance was given to Dankeith for alimenting his wife's four daughters; and, in the decreet against Moristoun, allowance was given for the three daughters of the first marriage; Mr William Dundas craved, that he might have part of the whole sums contained in Moristoun's decreet, without any defalcation, seeing there was none given for the entertainment of his wife; because, that a tack made to the whole daughters of the coal, whereof there were diverse intromitters, who were distinct debtors, he, in law, might crave his full proportion of every particular debt for which he did insist; and whensoever Major Biggar should insist upon his intromission for aliment from Dankeith, he should then allow to him what was defalked for aliment. It was alleged for Major Biggar, That the whole sisters having a common and conjunct right to the rent of one individual coal, for the intromission whereof, decreets were gotten by his diligence, both against Moristoun and Dankeith, the method of the account and reckoning ought to be, that the whole defalcations allowed in both the decreets should be first taken off the total of the whole intromissions; and, that as to the remainder, the whole sisters should have alike right for their proportions, and share alike in the benefit and loss of the debtors against whom decreets were gotten. The Lords found, That the method of compting should be as to the whole; and the defalcations for aliment taken off the total; and, if any debtor was irresponsal, they all should share alike in the loss.
Fol. Dic. v. 1. p. 364. Gosford, MS. No 243. p. 99.
