A disposition to moveables, with symbolical possession, being granted in security of a debt, and the creditor intromitting with a part only, the rest remaining in the debtor's possession, he was found liable only for his actual intromissions.
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Sir Alexander Home of Rentoun having granted a bond of corroboration to George Home of Keams, his uncle, for his payment and relief of certain sums of money that were due to him, and wherein he stood engaged as cautioner for the deceased Lord Rentoun, his brother; and for his farther security, Sir Alexander having disponed to him his hail stock of horse, noult, sheep, and other moveables, upon which there being an instrument of possesion by a symbolical tradition, and Keams having disponed and sold a great part of the goods, Sir Alexander pursues Mr Harry Home, to whom Keams had disponed his estate, with the burden of his debts, for count, reckoning, and payment to him of the price of the hail moveables contained in the instrument of possession. Alleged for the defender; that the goods being disponed to him only in corroboration, and for his further security for payment of his debts, he cannot be farther liable to count but only for his actual intromissions, in so far as he has actually sold and disposed of the goods. Answered, That the disposition being of the hail moveables, and the instrument of possession containing a particular condescendence of the number and prices of the moveables, the defender ought to be accountable for all that is contained in the instrument of possession, unless what he can make appear Sir Alexander intromitted with, or that Keams was otherways debarred from the intromission. And albeit Keams's right to the moveables was but a corroborative security, yet seeing it was a simple and absolute disposition as to Sir Alexander, and Keams having actually taken possession of the moveables, and having disposed of a great part of them, he ought to be countable for the hail goods contained in the inventory, unless he can condescend upon a relevant ground why he did not dispose of the hail moveables disponed, as well as of a part. Replied, that the disposition being only but a corroborative right, by the very nature of the security, Keams was not farther liable to account but according to his intromission; and albeit there was a symbolical tradition, yet the goods still remained upon the ground, and were kept by Sir Alexander's own herds and servants; so that unless Keams, conform to the disposition, had actually taken away the goods, he cannot be further liable to count but for his actual intromission. The Lords found the defender only liable to count for Keams's actual intromission.
Fol. Dic. v. 1. p. 238. Sir Patrick Home, MS. v. 1. No 158.
