Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Orrock of Balram v. Kinloch and Alexander Chapman
Date: 4 July 1694
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The first question was, If the discharges produced under the hand of the two co-partners in the brewery were probative without witnesses. For though, in writs subscribed by sundry parties, each of the subscribers are witnesses to one another, yet that presupposes three subscribers; for then two are witnesses to each subscription; but it is not so in two. On the other hand, many writs subsist without witnesses,—as bills of exchange, precepts, discharges of rents, &c. And it was contended, that, being in a matter of a society, though dissolved, the partners' discharge was sufficient to their clerk. This being a sort of commerce, in materia favorabili, the Lords inclined to sustain the discharge as probative. But, in regard it was alleged that there was a paper of the same kind, and labouring under the like defect, produced in a former process by thir defenders, which was sustained, the Lords ordained their oaths to be taken for producing it and that process; for, if they obtained an interlocutor sustaining it, they could not reclaim now; nam quodquisque juris in alium statuerit, ut ipse codem utatur, is a rule of natural equity. And, as to the former pursuit of Balram's, they found it super diverso medio; and so could not preclude his insisting in this.
And whereas it was alleged that the balance of £3500, reserved in that discharge, might be made up of the product of the brewery after Kincaid, one of the partners' death, and so Balram, as Kincaid's executor, could have no share therein;—the Lords found the presumption lay for him, 1mo. Because it might be malt bought by them all before his death, and brewed after it. 2do. The discharge expressly bore a clause of warrandice to secure the clerk against Kincaid's representatives; which is a tacit acknowledgment that he had a share and interest in that product, though after his death some months; and therefore that he might claim his part, unless the defenders produce the account to which that discharge is relative; and then it will appear what was before and what after his death.
