Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER HOME, CLERK OF SESSION.

George Monro of Lemlair,
v.
Gustavus Monro of Culrain

Date: 25 June 1736

Click here to view a pdf copy of this documet : PDF Copy

Upon the death of Lady Westertown, George Monro of Culrain, who was her heir, imagining he was likewise her executor, took possession of her silver plate, watches, rings, &c; however, he granted a receipt, wherein he obliged himself to be accountable for the same to those having the best right, without specifying the weight or value.

After this, Lady Lemlair was confirmed executrix to her sister Lady Westertown. But she having likewise died soon thereafter, the said George Monro, as having right from her, made an eik to Lady Westertown's testament, wherein he gave up the plate, &c. at L536 Scots value; and then brought a process against Culrain, in which he was decerned to deliver to the pursuer the ipsa corpora of the foresaid goods. Soon after which, the defender died; whereupon the process was transferred against his brother, the present Culrain : and the question that occurred betwixt them was, What rule should be followed, in order to ascertain the value of the goods in the receipt, seeing the late Culrain had disposed thereof?

For the pursuer it was Contended,—That the estimate given up in the eik to the testament was a sufficient proof, especially as it has now become impracticable to have the value ascertained any other way.

On the other hand, the defender Urged,—That no weight could be laid on the values in the testament: seeing that was purely the pursuer's assertion; and, if that was to be the legal rule, this absurdity would follow, that if he had given up the values at a much higher rate, the law would be the same. It is true, that in confirmations, the valuations are usually very low; especially when the executor is accountable to others. But it is not to be supposed this pursuer would err on that side ; as he is accountable to nobody. Possibly the values, as given up in the testament, would have been held as evidence against the late Culrain in pænam of his contumacy for not delivery: but such a proof, being of a penal nature, ought not to affect the heir, who cannot be presumed contumacious in not exhibiting what he never had access to see. Therefore, as it is a factum imprestabile as to him, all that can be demanded at present, is the damnum et interesse, when proved in a habile manner: which may easily be done, by appointing silversmiths to examine inventory ; who, upon comparing the highest and lowest sizes of each species, might strike a medium, whereby a value near to the true one would come out.

To this it was Answered for the pursuer,—That the narrative of the testament bears the same was faithfully given up; which being probably known to the late Culrain, it must have been a good proof against him, who did not exhibit the goods ; of consequence the same ought likewise to be sustained against the heir, who does not perform what his predecessor was liable to. And the defender mistakes the case when he considers it as of a penal nature, seeing the action is the same against him as against the late Culrain, viz. That he should be decerned in the just value of the goods abstracted by his predecessor. As to the proposal anent silversmiths being appointed to appreciate according to a medium, that is now impracticable, as no man without seeing them can form any notion of the value.

The Lords found that the value in the confirmed testament is the presumed value, unless otherwise proven.

No. 26. page 46.