An administrator in law confirmed a legacy left to his child. The caution found for him was found to be to the child, as well as to others interested in the subject.
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Sir John Lauder of Fountainhall, Senator of the College of Justice, assigned to his grandchild Magdalen Scot, the infant daughter of Thomas Scot of Maleny, a bond for 2,000 merks Scots, which he afterwards received payment of. Thomas Scot confirmed his daughter, executrix-creditrix to her grandfather; and gave up in inventory another bond for the like sum, which the Commissaries granted the power of intromiting with, “to the said Thomas Scot, as administrator of the law to, and for the use and behoof of the said Magdalen Scot;” providing she should render just count and reckoning of her intromissions. The cautioner was Sir James Nicolson of that ilk; and Thomas Scot “bound himself, and the said executrix, for their said cautioner's relief.”
Magdalen Scot assigned this claim to John Fife her husband, who pursued the relict and executrix of Sir James Nicolson, to make good the inventory which had been dilapidated, he alleged, by his wife's father and administrator in law.
Answered: An administrator in law is not bound to find caution, and the caution in the confirmation is not found for him to the infant, but for the infant, to all having interest in the defunct's effects; and accordingly she is taken bound to relieve him.
Replied: Although the confirmation is made in the name of the infant having right, yet when the inventory is to be given up by, and the intromission committed to, another, the caution is understood to be for the intromitter, and in favour of the person having interest; to which purpose Sir Thomas Hope gives his opinion expressly, Min. Pract. fol. 30. § 97.
The Commissaries, before whom the action was first brought, had found Sir James Nicolson, the cautioner in the confirmation, was not cautioner for the administrator in law to the minor; and therefore sustained the defence.''
The Lords, 7th December 1749, found that Sir James Nicolson was cautioner in the confirmation for Scot of Maleny, the administrator in law; and therefore repelled the defence; and on bill and answers this day, adhered.
Act. Lockhart.Alt. R. Craigie and H. Home.Reporter, Shewalton.Clerk, Pringle.
D. Falconer, v. 2. No. 129. p. 145.
