Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
The Earl of Northesk v. Carnegy of Kinfauns
Date: 21 February 1702
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Patrick Carnegy of Kinfauns having engaged in sundry debts for the late Earl of Northesk, his brother, and having paid the same, and acquired right thereto, there is a declarator raised by the present Earl of Northesk against this Kinfauns and his mother, for extinction and restriction of these rights; and, in the first place, he craved a communication of all the eases and compositions he got of the debts he paid, in respect he was one of the trustees and managers of his fortune, by a commission to him and sundry other friends; and which he not only accepted, but, by many missive letters produced, he declared the bargains he was making with the creditors were for his nephew's behoof, and so he was plainly negotiorum gestor, and could exact no more than he gave.
Answered,—The Earl has no prejudice; for as the creditor might have exacted acted the whole sum, so may he, as assignee, though cautioner; as was found, Sth July 1664, Nisbet against Leslie; and a negotiorum gestor is where one acts pro absente et ignorante, which was not here; and Kinfauns makes a fair offer,—if the Earl will communicate the eases he has got in purchasing in the debts upon Kinfauns, he will quit in the same manner all the eases his father got.
Replied,—There is no parity here to compel me to this unequal bargain, unless I had been your father's trustee as well as he was mine.
The Lords found Kinfauns obliged to communicate the eases; but the great question remained, How they should be proven? Northesk moved, That the creditors on life should be examined thereon.
Kinfauns alleged,—That our law had suspected probation by witnesses in many cases, and particularly repudiates them in taking away writ, it being hard that my debt should depend on the lubricity of their memory; and much more in this case, where each creditor would be only a single witness quoad the ease he gave; and that lately, in the case of John Binny and Mr Rory Mackenzie, the Lords found the eases he got from Dalvennan's creditors only probable scripto vel juramento. But the reason there was, because Mr Rory was on life; but here, Kinfauns being dead, there is no other imaginable way left but only to expiscate the ease by the creditors' oaths.
The Lords thought this a very dangerous trial; but, having no other way to extricate it, they appointed the creditors, before answer, to depone what they gave down of their sums, when Kinfauns transacted with them.
