Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Ensign Liviston and Charles Gray v. Macgie of Slogarie
Date: 18 November 1698
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Arbruchel reported Ensign Liviston and Charles Gray, merchant in Edinburgh, against Macgie of Slogarie. Hay, younger of Linplum, having in a sudden quarrel killed Captain Liviston at Glasgow, in May 1696, the magistrates secured the Captain's goods upon inventory; but he having been married to Macgie of Slogarie's daughter, the father-in-law intromitted with the whole goods without any authority, and disposed thereupon. His brother, and Charles Gray, as executor-creditor confirmed to him, pursue Slogarie for vitious intromission.
Alleged,—He had a probable title to intromit, because it was believed his daughter was with child, and so it was reasonable to secure the Captain's effects for the use of his lady and child; and seeing it proved otherwise, he was willing to restore such of the goods as are extant in specie; but he cannot be liable for the value of these which are either deteriorated, as his wearing clothes, &c. or dead since, as his horses, &c. seeing that has happened without any fault of his, and he being only debitor specierum, res perit suo domino.
Answered,—His intromission was predoneous and unwarrantable, seeing his daughter was but four months married to the Captain; and if there had been any expectation of her being with child, he should have applied to the magistrates, and intromitted by their authority.
The Lords found this intromission not necessary; and therefore found him liable for the price of such goods as shall be proven he meddled with and does not offer to restore in as good case as they were at the Captain's death.
