Powers of a Majority of a Society; - of a Surviving Partner.
Mills v. Bruce
Date: 17 December 1675 Case No. No. 24.
Partners having subscribed accounts of their common interest, their subscription was found not to exclude others of the partners to object to the accounts, although a meeting; had been called, for the purpose of settling, and the majority had, subscribed.
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Sir William Bruce being tacksman of the customs, Robert and Alexander Mills, and several others, were sharers. He gave them a back-bond, obliging himself to count to the partners, or such of them as, upon advertisement, should convene; and accordingly did make count, which is extant, subscribed by the most part of the partners; but Robert and Alexander Mills were not present at the close of the account, and did not subscribe. They now pursue Sir William Bruce to count with them; who alleged, absolvitor, because he had counted already, conform to his back-bond. The pursuers having been advertised to be present at the account, it was answered, That the remanent partners could not prejudge these pursuers.
The Lords found, That Sir William Bruce ought to make patent his account with the partners, with the instructions to the pursuers, and that they mght object against any particular article thereof, whereby they might be prejudged.
Stair, v. 2. p. 386.*** Gosford reports this case:
Sir William Bruce, being tacksman of the excise anno 1671, and having, by contract of copartnership, admitted Provost Mill, and many others, to the management thereof, extending to the number of twelve persons, with a provision, that they should be equally and proportionally gainers with himself of the whole benefit, after outrunning of the tack; he having warned the defenders and all the rest to meet, and fit his accounts, which they all did, except the two defenders; and upon the payment of their just proportions, did grant a discharge to the said Sir William, which the said Mills did refuse; whereupon he did pursue them for granting him a discharge upon the payment of their proportion of the benefit. It was alleged, That the defenders, being in societate, were not obliged to stand to any fitted account made by the rest of the copartners; but the pursuer ought to count with them de novo, quia in societate potior est conditio prohibentis. It was replied, That, by the contract of society, they were all bound to assist at the making of accounts, and they being required, ought not (after the fitting of the accounts with the whole rest of the copartners) force the pursuer to make a new account, now after so many years, and when many instructions might be out of the way. The Lords, having considered the contract of copartnership, as likewise that it was the defenders' own fault that they were not present at the fitting of accounts, did find, That Sir William was not liable to make a new account; and only ordained them to exhibit the account made, to see if they had any just reason to quarrel any of the articles thereof; otherwise; that they should immediately grant discharge, upon payment of their proportions.
