Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER BRUCE, ADVOCATE.

Agnes Nicolson
v.
Sir James Sharp of Stoniehill

Date: 17 June 1715

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[See page 121.]

By interlocutor of the 17th February last, (which is marked among the Decisions of that Session, and there the case is also stated,) the Lords found that the defender must count for such of the debts in the disposition, whereof the instructions came to his father's or his own hands, to extinguish his adjudication.

Now the defender alleges, that if this hold, it must conclude, that wherever a bond, ticket, or accompt, is assigned in security, and the instruction of debt delivered, the assignee must count: which would seem contrary to the current of decisions : as particularly 27th December, 1709, betwixt Smith and Vint, where such an assignee was not found bound to count for a sum so assigned to him, though the debtors had become insolvent, and the debts prescribed, while the instructions were in the creditors' hands. Nor, 2do, will young Sir William's accepting of the disposition, using it, and uplifting sums by it, be relevant to infer the conclusion in the pursuer's libel: for though the defender should count for intromissions, yet by the nature of the right, he is still exeemed from diligence, as was lately found betwixt Home of Kaims, and Home of Renton; and again, 22d July, 1709, Duncan contra Graham. It is true, the common debtor, or any in his right, may oblige the receiver of a right for security or in relief, to denude, or give up instructions upon payment; but it can be no sooner done, without overturning our known laws : and therefore, even before the defender can be decerned to exhibit, the pursuer must offer payment or security.

Answered for the pursuer,—That she barely craves the defender should be found liable either to hold count for the sums, or produce the instructions, and say they are yet unpaid and undischarged; so that esto in eventu, he should be exonered from doing diligence, yet nothing can ever cover him from being liable either to produce the writs, or hold count for the sums : And this, because, though the assignation may give the defender preference for his relief, yet the pursuer ought to be allowed to affect the same in her due place : nor can the use of them be denied her, for making them effectual for her payment, after the defender's.

Replied for the defender,—That his father's right for relief and security, having still a preference, so long as the disposition is not offered to be reduced, the pursuer cannot pretend to have any interest in the subject, before the defender be relieved and paid.

The Lords found the defender ought to exhibit such instructions of the particulars disponed, as came to his father's or his own hands, or to hold count therefor ; reserving all his defences as to the application of the sums for which he should hold count, whether to the grounds of his adjudication, or other debts: And, also, how far his father or he are bound for diligence, the right being granted for security and relief.

Act. Hay. Alt. Nasmith. Mackenzie, Clerk.

Vol. I. page 123.