Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
James Simpson v. Katharine Kylle and Husband
Date: 3 February 1705
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I reported James Simpson, merchant in Edinburgh, against Katharine Kylle, and John Gordon, one of the tellers in the bank, her husband. James having sold a parcel of merchant-ware to the said Katharine, in August 1701, who then kept a shop, he took her obligement at the foot of the account, extending to œ857 Scots, acknowledging all the articles to be just and truly furnished to her, and to be resting owing by her; and, on this, Simpson pursues her, and Mr Gordon her husband, for payment.
Alleged,—She did not deny the account, nor her signing the obligement; but neither she nor her husband could be liable; because what she acted therein was not nomine proprio, sed institoris, being prœposita by her father in the administration of the shop, the goods being his; so the prepositation made the debt his, and nowise obliged herself.
Answered,—You having, by a writ under your hand, become debtor to me, and I having no dealing with your father, you must only be liable; unless you prove, either by my oath, that I followed his faith in furnishing you the goods, or that you acted only in that capacity as a servant and trustee of your father's, and prove it scripto, by a written commission and mandate from him.
Replied,—That the common law, from which we have borrowed thir actions, called exercitoria et institoria, required no commissions in writ, but it was enough, if, from the tractus negotii, and the method of management, there appear such qualifications of trust as make it evident they act not nomine proprio: and here there were plain convictions of a prepositation, such as, that Robert Kyll quitted his former employment, made himself a burgess and guild-brother, paid stent as such, took prentices by written indentures, paid the shop-maill after his wife's death, put his daughter Katharine, bred up to that employment, in the shop, paid both inland and foreign bills, kept the count-books, and once every week took in the accounts, and received from his daughter the money which was the product of every week's sale: and the creditors were so conscious of this, that they took a disposition from the said Robert to the ware of the shop as his.
Answered,—Where a wife drives a trade, it is confessed that law presumes she only acts as prœposita by her husband, because she is sub manu et potestate mariti: But it is not so with children, who, if allowed to trade apart, are, in so far, reputed forisfamiliated, and what they acquire, sibi, nonpatri, acquirunt; we having no peculium profecticium or adventitium with us. And he offers to prove, That Katharine Kyll had as full and free an exercise of merchandizing as any merchant in Edinburgh, in buying and selling ware, in drawing and accepting bills and precepts, and giving discharges, in her own name, and never mentioning her father, and subscribed balances of accounts, and paid them; so the pursuer was in bona fide to contract with her, and thought himself in tuto to furnish her goods, and knew no other body to be his debtor but herself; and with such sham pretences of prepositation creditors ought not to be defrauded: and the accepting a disposition from Robert Kyll was no passing from his claim against Katharine the daughter; for it bears an express reservation, that it shall be but prejudice thereof.
The Lords, before answer, allowed Mrs Gordon and her husband to prove the qualifications from which she inferred her being only prœposita; and, on Simpson's desire, he got likewise a conjunct probation of the circumstances of fact he condescended on to redargue her articles, and to prove she acted as domina and for herself, and was so reputed and holden; and, at advising, the Lords would consider where the most pregnant probations lay.
