Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1685 and 1686.
Agnes Nisbet v. Isobel and Esther Smith and their Husbands
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1685. February 21.—Agnes Nisbet against Isobel and Esther Smiths, and Mr Alexander Bruntfield, and Scot, their husbands, is reported by Carse; and the Lords sustain process at the said Agnes the pursuer's instance. And also find, that the defenders having been silent for several years since the expiration of their respective pupillarities, so that they never did intent action for clearing their tutor-accounts, against Mr Alexander Heriot, their uncle, and late husband to the pursuer, till this process was raised against them by her; that therefore the pursuer must have payment of the debts now pursued for, without abiding the event of a count and reckoning anent her husband's intromissions, as the defender's tutor; the pursuer always finding caution to the defenders to refund what she shall be found liable in upon her husband's account foresaid, in the event of a process of count and reckoning.
The case here was, that the assignations to their father's bonds were taken by him blank, as is alleged, in the assignee's name, before he was tutor, and filled up since, and so could not be paid ex bonis pupilli; though the other reason and presumption of law may here take place, viz. that he was paid by his intromissions, et intus habebat.
The decisions, 24th January 1662, Sir J. Ramsay against The Earl of Winton, and that of Grierson of Lag against Carruthers of Hohnains, tie them only to find caution; which the Lords have followed in this, and not that late decision, 2d December 1679, James Cleland against Bailie, where an assignee's process was stopped till the tutor-counts were made. But that being a single praotick, they resolved, after much reasoning, (renitente Præside,) that the two should preponder the one. And this decision was different from Cleland's in this, that the right of the debts was in his person prior to the office. Yet, on the 18th November 1679, Thomas Lennox, because trustee and factor for Broughton, was stopped from personal execution on clear debts, till he made count and reckoning to him.
But, upon a second debate, this cause being again reported by Carse, the 13th March 1685, the Lords rectified their interlocutor thus far, and sustained the defence, that the pursuer's husband acted as the defender's protutor before his acquiring the assignations to the debts now pursued for, and continued to act till the year 1682, and did not make an account; being proponed peremptorié in causa, et cum onere maximarum expensarum: and found the continuing to act (which takes off the taciturnity,) is proven by the writs produced; but that the defenders must also prove, that the defunct Mr Heriot, their uncle, had acted as protutor before the acquiring of the assignations to the debts now pursued for; and ordain the defenders to pay to the pursuer a year's annualrent of the sums pursued for, betwixt and Whitsunday next, the pursuer finding caution to refund the same, if, by the event of the count and reckoning, it shall not be found due. Vide 26th Nov. 1685.
Vol. I. Page 342.
1685. November 26. —Agnes Nisbet against Smiths and their husbands, mentioned 21st February 1685. The Lords, upon Redford's report, refused to delay Nisbet the pursuer till the event of the Smiths' reduction, but decerned them to fulfil the disposition; and declared their obedience to this sentence shall not prejudge the defenders, in case they prevail in the reduction of the disposition ex capite lecti.
The Lords refused here what they are commonly in use to grant, viz. to decern, superseding extract for such a reasonable time as the reasons of reduction may be got discussed.
Then the principal cause being reported by Carse, on the 4th of December, the Lords, before answer, ordained both parties, hinc inde, to prove the points condescended on for inferring protutory or liberating therefrom, viz. whether Mr Alexander Herriot was the doer of their affairs, or was only present as their uncle, and an adviser; and who was the intromitter; and found the same probable prout de jure. Vide 30th March 1686.
Vol. I. Page 377.
1686. March. 30. —Agnes Nisbet craving by a bill to have her cause against Mr Alexander Bruntfield, &c., mentioned 26th November 1685, summarily advised, and the annualrent of her bonds to be paid her in the mean time during the dependance; the Lords refused both, being now in the end of the Session. Vide 8th December 1686.
Vol. I. Page 412.
See the posterior parts of the report of this case, Dictionary, page 12,081.
