Scottish Court of Session Decisions

Subject_1 DAMAGE AND INTEREST.

Campbell of Horsecleugh
v.
The Lady Little Cesnock

Date: 4 November 1714
Case No. No 9.

A husband having granted a disposition to his wife of his whole moveables, and a bond of 3000 merks payable by his heir, with a quality, that if the debts due to him exceeded the debts due by him, the bond should be proportionally abated; the relict's intromitting with the defunct's writs without inventory, found to infer a presumption, that the debts due to the defunct exceeded the debts due by him to the value of the sum in his bond, or that the same were accepted by the relict in full satisfaction.

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Campbell of Little Cesnock disponed to his Lady the whole debts due to him, and all his moveable estate, with the burden of his debts; and, further, granted her a bond of 3000 merks to affect his heritage; but with this quality, that in case the principal sums of the debts due to him did exceed the principal sums of the debts due by him, that the said bond of 3000 merks should be abated proportionally in whole or in part. Some time after Little Cesnock's decease a warrant was procured from the Sheriff-depute to inventory his writs, which was not done; but his closet and cabinets were sealed by the person sent to inventory, and some friends, the Lady being absent.

Campbell of Horsecleugh, Little Cesnock's heir, pursued a reduction of the 3000 merk bond, on this reason, that the same was qualified, and did provide, that if the debts due to him did exceed the debts due by him, the same should be extinguished or restricted; and subsumed, that the bond was extinct, because the Lady had taken upon her to intromit with the writs per aversionem without inventory or authority of a Judge, and therefore it must be presumed, that the defunct's free principal sums did at least amount to the sum in the bond.

It was alleged; The Lady's disposition did bear a power to intromit with the subject disponed, so that non versabatur in illicito, esto she had broke open the seals and meddled with the writs. 2do, She had exhibited all the writs upon oath, or condescended what was become of such as were not exhibited, for which she would hold count, and this deposition being in the same process at the pursuer's instance, juratum est. 3tio, The Sheriff's warrant was to inventory, and not to seal; yet the goods were sealed, and not inventoried, which was unwarrantable; and several doors of the house were so sealed up, that the Lady could not have access to her own liferent house at her return, and therefore might lawfully break up the same.

It was answered; 1mo, The clause with power to intromit, was a clause of style which was understood legitimo modo. 2do, The pursuer does not quarrel her intromission as vitious, because the whole moveables were disponed to her, but founds upon the quality of the bond, which necessarily implied an obligation upon the defender to intromit by authority and inventory, that it might appear whether or how far the debts due to the defunct did exceed the debts due by him; and the Lady having deprived the heir of the means of discovering the extent of the defunct's debts, she must be understood to have taken the disposition to the moveable debts per aversionem, in satisfaction of her whole claim. 3tio, The defender's oath was not deferente adversario, as to the present debate, but was in an exhibition at the pursuer's instance, as the defender's husband's heir, before her right to the moveables and debts did appear. 4to, The seals being put on in presence of friends, ought not to have been removed, and the warrant to inventory did import that the writs might be secured till they were inventoried. But however, it was the defender's part to have procured a warrant to inventory, and to have intromitted only at the sight of a Judge. 5to, As to the indiscreet sealing of the doors of the rooms, the fact is denied. But supposing it, the Lady might either have obtained the seals to be removed by the warrant of a Judge, or at least in presence of famous witnesses, and obtained new seals to be put upon the writs.

‘The Lords found the Lady's intromission with the writs per aversionem, without any inventory, relevant to infer a presumption that the debts due to the defunct did exceed the debts due by him to the value of the sum in the Lady's bond, or that the same were so accepted by her; and repelled the allegeance founded upon her oath in the exhibition.’

Fol. Dic. v. 1. p. 208. Dalrymple, No 113. p. 157.