Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
James Sutherland and George Weddbrburn, v. Bailie John Johnston of Polton
1684,
1685,
1686, and
1693.
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1684. November 14.—In the case of James Sutherland and George Wedderburn, his son-in-law and assignee, against Bailie John Johnston of Polton, it was debated, how far the Lords of Session may still advocate causes from the Admiral Court, notwithstanding the late act of Parliament 1681, establishing and extending the Admiralty jurisdiction very far, and prohibiting advocations from them in all maritime or seafaring cases.
For, 1mo—It was alleged, a process founded on a co-partnery, or society for trade, was not properly a maritime cause. 2do, When the advocation was actually past, Sir David Thoirs, Admiral-depute, ought not to have contemned the same by rejecting it, and proceeding to decern, but should have applied to the Session or Secret Council.
Answered—That a trade depending on bills of exchange, or bills of loading, or cargoes of wine, &c. from abroad, was truly maritime. And, as to the 2d. The late act of Parliament made the Admiral Court sovereign in prima instantia.
Sir David Thoirs durst not venture this point to interlocutor; and so his decreet in absence was turned into a libel, and Bailie Johnston thereby freed of finding caution judicio sisti et judicatmn solvi for L.36,000 Sterling libelled, as is required by the form of the Admiral Court; though they offered to restrict their libel to L.6000 Sterling, for which he might find caution. But my Lord Saline, who past the bill of advocation, caused Bailie Johnston give in a complaint to the Lords against Sir David, for contemning not only the Lords' authority, but also the King's Signet letters of advocation.
The Lords ordained Sir David to answer the bill. He verbally declared he would not, because he could not be cited hoc ordine, he not being convened as a member of the house, who may be summarily called, but as a supreme Judge; therefore they must raise an action against him before the Privy Council for malversation, where he is content to answer. The Lords, notwithstanding thereof, recommended to him to answer the complaint; at last it was accommodated; but this interfering of privileges and jurisdictions begot some animosities and heats.
In this case it was debated, how far in law count books in a co-partnery proved pro scribente vel contra tertium; for that they prove contra scribentem there is no doubt. If you make use of a charge given in by me, you must also own the discharge I give in with the same breath on the other credit-side; or else you must constitute and prove your charge against me aliunde; for it is in articulo connexo, quern non licet dividere et pro parte approbare et pro reliquo reprobare. And to this the Lords inclined. For this cause being reported by Saline on the 19th of November, the Lords ordained both parties to count and reckon; but before the Court proceeded, they ordained James Sutherland to exhibit upon oath in the clerk's hands all the books and writs relative to the co-partnery which he received from Bailie Johnston the suspender.
Vol. I. page 310.
1685. January 29.—James Sutherland, and George Wedderburn's case contra Bailie John Johnston, mentioned 14th November, 1684, was reported by Forret. And the Lords found they would take no other probation of Bailie Johnston's having the count-books, and putting them away, but his oath, seeing the co-partnery was never in writ, and was suffered to lie over twenty-two years since its dissolution: and found the abbreviates of the counts given in by John Johnston behoved to be taken complexly, as well in what made for him as against him; and could not singly be made use of only to constitute a charge against him, without noticing the discharge and credit side of the account also. Non licet idem et approbare et reprobare.
Vol. I. page 335.
1685. November 25.—The case of Bailie Sutherland and George Wedderburn, his son-in-law, against Bailie Johnston, mentioned 29th January, 1685, was reported by Forret. The Lords, before answer to this point, whether the abbreviates shall be probative as well for his discharge as a charge against him, in relation to debit and credit, ordained Provost Curry, Bailie Johnston himself, James Sutherland, and Gilbert Fife, to be examined ex officio, whether the book of debit and credit was marked by any of the partners in presence of all or any of them, and if they knew what came of the instructions either of debit or credit; and if the double of each person's account was not given to them at the time of marking the said accounts, or thereafter; and Provost Curry and Gilbert Fife to be examined if they got any money from Bailie Johnston upon the account of Patrick Fife or James Curry's interest in the copartnery, or upon what account they got any money from Bailie Johnston at any time since; as also, if they were in use to uplift debts owing to the copartnery, or goods belonging to it, or to receive money from Bailie Johnston without giving him receipts therefore; as also Bailie Johnston to be examined, what was the reason why he omitted articles condescended on which were not inserted in the abbreviate; and that James Sutherland be examined if he has any particular account relating to his interest in the copartnery. Sutherland's lawyers acknowledged quod nemo tenetur edere instrumenta contra se; but that there were exceptions, where some were bound to furnish a charge against themselves; as tutors, curators, factors, book-keepers, cash-keepers, and other managers; who could not be charged unless they gave it in; and when they did, it were ridiculous to think their discharge given in by them should also, without any more instruction, prove for them.
Vol. I. page 377.
1686. January 15.—Wedderburn and Sutherland's action against Bailie Johnston, mentioned 25th November, 1685, was again advised; and the Lords found, that the pursuers, Wedderburn and Sutherland, cannot make use of the abbreviates for proving the charge, unless to prove also the articles of discharge, except such articles as of their own nature require to be instructed by writ; without prejudice to the charger to prove his charge otherwise than by the abbreviates, or to add to the articles of the charge; and find that the pursuer's accepting a copy of the defender's obligement relative to a list of bonds therein mentioned, does not prejudge the pursuer of the other debts of rests mentioned in the abbreviate as due to the co-partners; and find the defender liable to assign to the pursuer his share thereof, and to make the bonds forthcoming; as likewise, find the allegeance proponed by the defender, that the shipping contained in Bruce of Newton's former accounts is not transferred to the abbreviates, because they were medio tempore shipwrecked and lost at sea, relevant to be proven prout de jure: And find the defender liable to count for the sum of L.340 Sterling mentioned in Newton's account, and to assign to the pursuer his share of it, and to make the bonds forthcoming: and ordain the count and reckoning to proceed accordingly.
Vol. I. page 393.
1692. February 17.—The case of James Sutherland against John Johnston of Polton, being reported, the Lords declared they would hear it in their own presence, if George Wedderburn, the assignee, could make any transaction with Polton, and discharge him; seeing he had given a back-bond of the date, declaring it was but a trust in his person for James Sutherland his father-in-law's behoof, which was pars contractus, and affected personal rights; and so the transaction could subsist no farther but for the money that was paid pro tanto, he breaking immediately after giving this discharge. Many of the Lords were for assoilyieing Polton from this reduction.
