[1706] Mor 12333
Subject_1 PROOF.
Subject_2 DIVISION I. Allegeances how relevant to be proved.
Subject_3 SECT. III. What Proof relevant to take away Writ.
Date: John Spence, Procurator-fiscal of Brechin,
v.
Christian Duncan, Relict of Mr William Chaplain, now Spouse to Mr Andrew Geddie, Minister at Farnall
15 January 1706
Case No.No 109.
Super-intromission over and above what was contained in fitted accounts allowed to be proved scripto, but not by witnesses.
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The deceased James Carnegie of Balnamoon being confirmed executor to his father, who died in April 1700, John Spence, Procurator-fiscal of Brechin, his creditor, in L. 1000, confirmed himself in the terms of the act 41st Parliament 1695, executor ad omissa to the father, and pursued Christian Duncan, as executrix testamentary to Mr William Chaplain, for the crop 1699 of the lands of Balnamoon, omitted by the young Laird out of his father's testament, and intromitted with by Chaplain.
This defence being proponed for Christian Duncan, That her husband was only a servant to the Lairds of Balnamoon; and as he had intromitted with the rents of that estate, so he had counted and cleared, and made bona fide payment to, and obtained a general discharge from the last Balnamoon who was heir and executor to his father;
Alleged for the pursuer, The discharge being relative to particular fitted accounts, can only exoner, in so far as is stated in these accounts; and that, notwithstanding of a general clause in the said discharge, discharging all other accounts and intromissions whatsoever; in regard the last Balnamoon having no direct right to the crop 1699, unconfirmed in his father's testament, could not, in prejudice of creditors, discharge at random all intromissions by a general clause; though the charge be sustained, as to what is instructed to have been particularly counted for upon the pretence of bona fides, in paying to one who had a shew or colour of right. And the pursuer offered to prove super-intromission by Chaplain, over and above what is contained in the fitted accounts, prout de jure, as intromission with rents and bargains of victual are probable.
Answered for the defender, Mr Chaplain having intromitted as servant to both the old and young Balnamoon, by their verbal order, and not suo nomine, that was not properly his, but Balnamoon's intromission by him as the hand, for which the defender cannot be liable, although her husband had obtained no discharge, since he is presumed to have delivered the rents to his master as he received them; and far less can she be liable, when he was honourably dismissed by his master with a general discharge, November 25. 1671, Irvinecontra Falconer, No 95. p. 11424.; February 17. 1676, Abercromby contra Atchison, Div. 5. § 7. h. t. And though witnesses be competent to prove receipt of victual, where usually, for commerce-sake, writ is not interposed, and the
seller wants the price; yet they cannot be admitted, in this case, to take away writ, viz. the general discharge subsequent to the intromission. The Lords found Mr Chaplain's super-intromission over and above what is contained in the fitted accounts relevant to be proved by the pursuer scripto, but not by witnesses, in respect of the general discharge; though, regulariter, the uplifting of victual rent may be so proven; besides, such a thing might expose servants to great danger, who commonly, by their master's verbal order, take in and deliver the rents without any receipt.
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