Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Helen Scarlet
v.
John Paterson

Date: 25 January 1632

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Scarlet pursuing Paterson, as heir to his father by intromission with his father's heirship goods, and so thereby behaving himself as heir, to pay his father's debts; he compearing, and proponing an exception that his intromission was only by virtue of a warrant of the Lords, directed at his instance, craving inventory to be made, that the goods might be made forthcoming to all parties having interest, (and that his meddling with the same upon inventory, as use is, should not make him heir;) according whereunto inventory was made by the judge and clerk to whom the Lords committed the same, and which goods were yet extant in that same state;—and the pursuer replying, that the defender had intromitted with a bible, and an hagbut and sword, and a cod, and a board-cloth, and curtains of a bed, and had used them on this manner, viz. by reading on the bible, and retention in his house of the hagbut and sword, and by lying on the cod, and hanging the curtains about the bed, and by spreading of the cloth upon the board; which particulars were not given up by the defender, at the making of the inventory, but were fraudulently left out thereof, at least must be presumed to have been done fraudulently, seeing they are not in the inventory; and the defender having used them as said is, (whereby he cannot pretend ignorance,) he must thereby be liable as heir:—The Lords found this reply relevant; albeit it was not alleged that the defender had disponed or sold any of the foresaid particulars; and albeit the party alleged that the retaining of the same, and using of the same, as was qualified, could not thereby infer him to be liable to all his father's creditors; seeing the omission to put them up in inventory might have proceeded from either his ignorance, or that the same were not then in his sight, or that the clerk might possibly have forgotten to write them up; and they were of so little avail, and of so small importance, that thereby he cannot be made heir; specially seeing he offered to make them all forthcoming, and that they were extant in as good state as they were the time of the inventory. Which duply was not sustained; but they found that they would advert diligently to the probation, anent the deeds of the defender's intromission, and to the very particulars which should be proven to have been intromitted with by him, and the manner thereof; and would thereafter consider, at the advising of the process, if thereby the defender should be found in reason liable as heir, or not: To which time the Lords superseded to declare if he shall be thereby heir, or not, and what it shall import.

Act. Cunninghame. Alt. Stuart. Scot, Clerk.

Vid. 15th January 1630, Cleghorn.

Page 614.