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Scottish Court of Session Decisions >>
Matthew Anderson v John Paton. [1709] 4 Brn 766 (1 December 1709)
URL: http://www.bailii.org/scot/cases/ScotCS/1709/Brn040766-0272.html Cite as:
[1709] 4 Brn 766
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Matthew Anderson v. John Paton
Date: 1 December 1709
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The deceased William Paton, merchant in Edinburgh, dispones his estate and effects to his father, burdening him with sundry legacies to his brethren and sisters, and particularly 7000 merks to his sister Elisabeth; and she being married to Ninian Anderson, who received 4500 merks, he pursues John Paton for the remaining 2500 merks, as he who represents his father, the trustee, by the foresaid disposition.
Alleged,—There was no obligeaient on the father to pay, but only to divide it amongst his bairns; and denies the money was uplifted, but still in the debtor's hands. Answered,—Either it was actually intromitted with by him, or he ought to have done diligence for recovering thereof.
The Lords found it relevant, that the sums assigned were uplifted and intromitted with by the defender or his father, to make him personally liable for this debt; and, failing thereof, found that Paton must assign Anderson to 2500 merks of these sums, with this special warrandice, that they are yet resting owing, unuplifted; on which assignation ordain Anderson to discharge his claim: and, to discover what is intromitted with, and what not, ordained Paton to produce his father and brother's count-books. And the term being circumduced against him for not obtempering the interlocutor, he gave in a petition, showing he had produced these count-books in another process, betwixt Sir Samuel Maclellan and him, and they were borrowed up; so he could not exhibit them without a special warrant.
The Lords stopped the circumduction, and ordered the reproduction of them in the clerk's hands.
Another question was started in this cause, viz. what kind of debts he should be assigned to: If he could crave the most sufficient and responsai of the whole list, or if they could offer him the refuse and desperate debts. It was thought neither of them were to be gratified in such an election, but, without picking, he ought to have a share of both. Which is agreeable to the common law, as Vinnius observes, sect. 22 et 23, Institut. de Legat.
