Presumption that articles claimed have been accounted upon.
Elizabeth Cairns, and John Cochran of Waterside, her Husband, v. The Creditors of Garroch
Date: 5 June 1747 Case No. No 47.
A factor having stated in his accounts interests of sums of his constituent, as in his hands for a continued time, they were presumed to have remained in his hand, unless he could have shown how they were discharged.
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James Cairns of Minnibowie, 24th December 1694, granted a factory to Alexander Cairns of Garroch, over all the effects which he should have at his decease, narrating, That by his testament he had made him tutor to Alexander and William his two sons, whom he had excluded from the administration of their estates, till they should be 25 years of age.
On the back of this factory there appeared in Minnibowie's hand, of the same date, a list of debts belonging to him, entituled, “List and account of bonds, pertaining to James Cairns of Upper Minnibowie, whereof I have given a factory to Alexander Cairns, my brother's son, which he is to hold account for, anent his intromissions therewith, conform to the said James his testament and factory relating thereto.”
In the list were the following articles,
Item. Be the said Alexander Cairns of principal sum L. 600 0 0
Annualrent all paid till Candlemas 1695.
Item. The said Alexander hath of the said James, his money lying beside him, to be lent upon good security, 466 13 4
Below the list was an entry, written by Garroch, and subscribed both by him and Minnibowie, “18th December 1696, counted with my uncle, and he is “paid off all his annualrents for 1600 merks, until Martinmas last 1696, except 40 merks.” And lower, there was this other, written and subscribed by Garroch and Minnibowie, “23d January 1699, counted, with Minnibowie, and he is paid off all annualrents for 1600 merks, till Martinmas 1698, except L 40 retention allowed; and I allege L. 12 Alexander got is not allowed me hitherto, and due.”
Elizabeth Cairns, grandchild and executrix to Minnibowie, obtained decreet against Garroch for the last sum, and adjudged his estate; and appearing in the ranking of his creditors, it was objected, That the jottings on the back of the factory were not sufficient documents of debt.
The Lord Ordinary, 16th January 1745, “Found that the jottings on the foot of the list of debts subjoined to the factory by Minnibowie to Garroch, were no sufficient or legal evidence that the L. 466:13:4 contained in the said list, was a subsisting debt, or still due.”
Pleaded in a reclaiming bill, That the jottings on the factory in Garroch's hand-writing, were an evidence that he got this sum, to be lent out upon security, and retained it for years, paying interest therefor. This was an obligation once fixed upon him, which behoved to continue unless properly taken off; and as there could be no doubt that if he had been pursued in a short time after the last accounting, he behoved to have been liable, so must he now, notwithstanding it be true that no action was brought till 1730; for it is as true that no action was raised against him on his bond for L. 600; Alexander Cairns, who succeeded his father, never having made up any titles, but received payments in general to account, all which had been allowed to Garroch out of the pursuer's claims.
Answered, That these notandums were no sufficient evidence of a subsisting debt, since it was probable Garroch had lent out the money afterwards, and delivered his uncle a bond therefor; at which time he had retired the receipt he had granted when he first got it.
Observed by the Lords, That it was ordinary to put money in an agent's hand, without receipt, to be lent out, who delivered a bond, and got no further exoneration; and therefore it would be hard, upon any acknowlegement of his having once had the money, to make him accountable at a distance of time: But here the jottings proved he had retained it for years in his hand, and paid annualrent for it, after which it was proper he should discharge himself.
The Lords altered the interlocutor.
Act. W. Grant.Alt H. Home.Clerk, Hall.
D. Falconer, v. 1. No 181. p. 244.
