Scottish Court of Session Decisions

In December, 1815, the late David Newall, writer in Dumfries, being in embarrassed circumstances, executed a trust conveyance of his estate in favour of William M'Lellan of High Kelton, for behoof of his creditors. A few days prior to this, he and his wife executed a disposition of certain heritage in favour of their sons Adam and David Rae Newalls. The father and his wife had continued to possess a house and some ground falling under the disposition, and there was another part of the ground, the rent of which was uplifted for several years by John Morin of Carzield, as mandatary of the sons Adam and David Rae Newalls, who were abroad. In April, 1816, M'Lellan raised a reduction against David Newall, his wife and two sons, of this disposition, as being granted without onerous cause to conjunct and confident persons in prejudice of prior creditors, and concluding that the said “Adam Newall and David Rae Newall ought and should be decerned and ordained, by decree foresaid, to make payment to the pursuer, as trustee foresaid, of the rents, maills, and duties, of the foresaid subjects, in so far as the same have been, or may be intromitted with by them.” The reasons of reduction were repelled as to the fee of the subjects which did not belong in property to the father, but they were sustained as to the liferent. He died in April, 1820.

A considerable time after the death of Mr Newall, a summons of wakening and transference was brought against his widow and sons. Under the conclusion a question of a special nature arose, whether, in all the circumstances, and in reference to the terms of the original summons, the defenders, Adam and David Rae Newalls, were liable for the whole rents which the subjects yielded, or might have been made to yield, during the lifetime of their father David Newall, or whether they were only liable for such of these rents as they had actually intromitted with? Part of the rents had been consigned in a bank, and the defenders had no objection to these being uplifted by the pursuer.

Mrs Newall, the widow, contended that she was entitled to total absolvitor, as she had had no intromissions with the rents, and was not liable for occupying part of the subjects by residing with her husband during his lifetime, and at his death the right of the creditors fell.

The Lord Ordinary “of consent, allowed the pursuer to uplift the sums consigned; found that the defenders, Adam and David Rae Newall, are bound to account for the rents of the subjects let, with which they or their agents actually intromitted; and appointed the case to be enrolled, that the amount of the foresaid sums may be ascertained; quoad ultra, assoilzed the defenders from the conclusions of the libel, and found no expenses due.”

The pursuer reclaimed.