Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER BRUCE, ADVOCATE.

Mrs Agnes Nicolson,
v.
Sir James Sharp of Stoniehill

Date: 16 February 1715

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The deceased Sir William Sharp of Stoniehill, grand-uncle to the said Sir James, having married a lady, with whom he got a considerable portion, and having no children, grants bond to her for L10,000 Scots, payable and bearing interest after his decease ; and thereafter grants a disposition to several debts resting to him, constituted by bonds, tickets, accounts, &c. in favours of Sir William Sharp of Scotscraig his nephew, and father to Sir James : Which disposition bears this narrative, That his nephew stood bound for him in several considerable debts. After old Sir William's decease, his nephew did not represent him ; but paid many of his debts, taking assignation thereto in name of George Howat his trustee, who thereupon leads an adjudication on old Sir William's estate. And Agnes Nicolson, the old lady's niece and assignee, did also within year and day, lead an adjudication upon the above-mentioned bond, and now insists in a process of mails and duties. Wherein compearance being made for Sir James Sharp, son to Sir William the younger, he produces for his title the said adjudication: and craves preference, because Howat's adjudication was led for true debts and bonds of borrowed money; whereas Agnes Nicolson's adjudication is a gratuity, which ought to be postponed to onerous debts.

Answered for Mrs. Nicolson,—That she only craved to be admitted pari passu with Howat's adjudication; and that Sir James could not object against her debt, because old Sir William had left sufficient means to pay all his debts, and this bond also in favours of his lady. And further, that young Sir William had accepted the said disposition, to a vast sum more worth than all the heritage; so that it was presumeable he had bought in his uncle's debts with the effects of the disposition.

Replied for Sir James,—That the naked acceptance of the disposition could never import extinction of his adjudication, in regard it was only a right in further security, nowise innovating the constitution of the debt secured ; and Sir James and his father were under no obligation to use diligence, either implicitly from the nature of the right, or expressly from the tenor thereof: and therefore Mrs. Nicolson ought to prove his intromissions ; in which case, he offered to prove the same was applied towards payment of other debts due by old Sir William than what was contained in Howat's adjudication, and therefore must be imputed in payment of these other debts.

Duplied for Mrs. Nicolson,—That the disposition being not only accepted, but effectually made use of, it is not relevant for Sir James to say, that he can be found liable to hold count for no more than for what shall be proven he did uplift, unless at the same time he produce the bonds, tickets, &c, which are disponed, and say they are yet unpaid and undischarged. 2do, It was presumeable, that young Sir William, who was apparent heir to his uncle, but refused to represent him, and yet did accept and make use of this right, has recovered payment of all these debts, unless he produce the documents of such as are not recovered; and this chiefly, because he accepted this right for his relief of engagements. And therefore seeing he refused to represent, he had no farther a just title to these evidents as his own, but for his relief only; and quoad ultra he was but trustee for Sir William's other creditors.

The Lords found the defender must count for such of the debts in the disposition, whereof the instruction came to his father's or his own hands, to extinguish his adjudication. Vide 17th June, 1715.

Act. Hay. Alt. Nasmyth. Mackenzie, Clerk.

Vol. I. page 89.