Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1686 and 1687.
David Crighton v. James Murray of Skirling
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1686. March 10. —David Crighton's action against James Murray of Skirling, being reported by Castlehill; the Lords sustained the pursuer's title to call for repetition condictione indebiti, though the right was his wife's, and she is dead, because of his contract of marriage produced; and reponed him against Skirling's decreet, in respect the translation to Mr James Ross was to the behoof of Skirling, now defender, and that it contained a discharge to two of the cautioners; and therefore it was unwarrantable to decern the pursuer and his wife for their parts of the sum: but find it relevant, scripto vel juramento, that the pursuer transacted the sum decerned for, and got an abatement thereof; which will import homologation against him. Vide 3d December 1686.
Vol. I. Page 407.
1686. December 3. —In David Crichton's action against James Murray of Skirling, mentioned 10th March 1686, Skirling was allowed to prove that David got an abatement by his transaction, scripto vel juramento. And he having produced some decreets for proving thereof, David gives in a bill, alleging the writs produced were made use of before the act was made, and had no contingency with the point admitted to probation, but were only thrown in to postpone and delay his decreet of repetition of the sum indebite solutum; and therefore craved it might be referred to Castlehill to consider the production, (he having made the act,) that, if they had no contingency to prove, then they might be rejected; seeing it would be long ere they could come in to be advised by the ordinary course of the roll.
The Lords remitted the consideration of the papers produced to Castlehill; who, on perusal, found a contingency. So the cause was enrolled to be advised. Vide 28th June 1687.
Vol. I. Page 434.
1687. June 28.—David Crighton's repetition condictione indebiti against James Murray of Skirling, mentioned 3d December 1686, is advised; and the Lords, having considered the debate, and writs produced, and Castlehill's report, find the defence of transaction, and abatement of the sums paid by the pursuer to the defender, by virtue of Mr James Ross's decreet, not proven and therefore decern against the defender for repetition of the haill sums paid by him to the defender, by virtue of the foresaid decreet, more than Alderston, one of the cautioners, his part, whom the pursuer represents. But, in regard, at Candlemas 1681, in the account betwixt Dumfries and Newbyth, it appears there was an abatement of the total sum made up of the sums contained in the decreet foresaid, and the annualrents thereof, and of extrinsic debts and their annualrents; that the said abatement may be constituted, ordain the clerk, at the sight of Lord Castlehill, to make up an account, charging the defender with the receipt of £3000, contained in the said decreet, and the annualrent thereof from Lammas 1649 to Candlemas 1681, and of the two extrinsic sums, and the annualrents thereof to the said time; and in so far as the sums to be made up exceed the £8802 truly received by the defender, to give him credit therefor, as the abatement then given, and for Alderston's part of the sums, and the extrinsic debts; and, in so far as these sums are less than the total charged upon the defender, to decern him in repetition of the same.
James Murray having given in a bill against this, and the Lords, on the 22d of July, having heard Castlehill report the points of the bill and answer; find the account produced under the pursuer's hand does not instruct the abatement or transaction, nor ought to be the rule of the account; and find, by the assignation granted by Skirling to Russel, and by Russel's translation to Mr James Ross, that Pitcairn of Forthar, one of the four cautioners, his part was discharged; and that therefore the defender, Skirling, or Mr James Ross his trustee, could not take decreet against the pursuer but for Alderston's fourth part, and for the third part of St Leonard's fourth part, being the fourth cautioner, who was insolvent; and that the defender ought to have credit for the annualrents of the annuals of the said fourth part, and the third part of St Leonard's part, from the date of the denunciation on the decreet in 1673 (conform to the 20th Act of Parliament 1621,) to Candlemas 1681, which is the time of the account and payment, which makes up the annualrents of the sums justly decerned, but not for annualrents of the annualrents of the sums which by this present decreet are ordained to be repeated and repaid; and therefore approve of the calculation produced, and ordain the two partial payments made by Alderston and St Leonard's to be deduced, conform thereunto; and that the decreet be extracted for the balance.
This being also reclaimed against, the Lords, on the 26th of July, refused the desire of the bill, and adhered to their former deliverance, and ordained the calculation whereon the decreet is to be extracted, to be conform to the interlocutors, unless the defender will instanter prove his allegeance that the pursuer is heir of tailyie, or otherwise liable as intromitter with the goods and gear of the principal or cautioner. In obedience whereto James Murray having produced a disposition, granted by the said David to John Gibson, of a tenement, near the Court of Guard of Edinburgh, belonging to his father, one of the cautioners, bearing sums of money; the Lords, on the 29th of July, did not find that this gratuity inferred any passive title on David.
