Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Charles Jackson and his Children v. Sir James Cockburn of that ilk
Date: 21 December 1693
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The Lords found the fitted account betwixt Sir Hary Wilkie, on the one hand, and Sir James Cockburn and Sir William Seton, on the other hand, produced, stating the balance to be only £4,217 Scots, not to be the rule or standard by which Charles Jackson was bound to count; seeing it appeared, by the decreet of preference which Charles had obtained against Peter de Grave as creditor and assignee by Sir Hary Wilkie, that it was not produced by him, but by Sir Hary and his assignee; and, though he insisted for that balance primo loco, yet it did not hinder him to make a further additional charge against Sir James. But the Lords did not find the count stated between Sir James and Andrew Houston of Garthland to be the rule either, till Sir Janies was heard whether it was res inter alios acta. And as to the second point, whether it was bona fide paid to Sir Hary Wilkie and his assignee, the Lords found he had no right to the said balance, and therefore found the payment unwarrantable: seeing it was not instructed that Sir Hary was a partner in the tack of the customs and excise with his brother, David Wilkie, and that his assignation thereto from Mr Archibald, as executor confirmed to his father David, was a non habente potestatem; seeing this sum was not confirmed by Mr Archibald, but by his sister, Rachael Wilkie, wife to the said Charles Jackson, and executrixdative ad omissa; and any eik that was made by the said Mr Archibald was afterwards improven as false. The Lords also repelled that defence, That he had paid Sir Harry upon a probabilis ignorantia juris, thinking that, because Mr Archibald, his cedent, was confirmed executor, therefore he had right, seeing it was not given up in the inventory. But it occurred to the Lords that he might be not only executor-nominate, but likewise universal legator, which would give him right to this balance without a specific confirmation. But they considered that the ground of Rachael Wilkie's confirmation was as creditor to her father in a bond of 4000 merks of tocher; and she had proven that her father had continued in a solvent and responsal case to his death, so she would be preferable to the universal legacy; but restricted Charles Jackson and his children's claim, to the said ground of debt, and the annualrent of it.
