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.
William Gordon v. Sir Andrew Kennedy,
Date: 13 November 1705
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[See the prior part of this case, Dictionary, page 7508.]
William Gordon, late factor at Campvere, now merchant in Aberdeen, pursues Sir Andrew Kennedy, conservator of the Scots privileges in the Netherlands, for payment of certain sums contained in accepted bills; and, after some debate, obtains a decreet against him; which Sir Andrew suspends on this reason, That he must have compensation; because you having pursued a divorce against your wife, and the Dutch having owned her, you employed me to negotiate that business for you, at the Hague and the Loo, wherein I was at great expenses and trouble, which you must refund me. And the conservator being reponed against the first decreet, as being then out of the kingdom when it was obtained; and having referred his reason of suspension to William the charger's oath, he confessed that he applied to him, as judge of the place, to protect him against the injustice of the Dutch, but did not promise him payment, &c.
This oath coming to be advised, it was first alleged for Gordon the charger, —That the reason of suspension being a compensation, and not proponed in the first instance, was not, by the 142d Act of Parliament 1592, receivable in secunda instantia, being competent and omitted in the first.
Answered,—The allegeance was very true, if the first instance was subsisting; but it was extinct, in so far as Sir Andrew was reponed against that first decreet, and paid £20 of expenses; and so, it being turned to a libel, this became truly the first instance.
The Lords, in respect that the first decreet was turned to a libel, found the compensation yet receivable.
Then, 2do, it was alleged for Gordon, That his oath did not prove the compensation, seeing he denied any promise of payment; his employing him being ratione officii, as a judge bound to protect all Scotsmen under his jurisdiction; and which he was bound to do gratis.
Answered,—By an express article and instruction from the royal burghs, as he was obliged to act and negotiate for the Scots merchants, so it is expressly declared it was to be on the employer's expenses. 2do, This obligement of reimbursing and indemnifying me is implied, ex natura negotii, without any express paction. If I employ you, though there be nothing treated anent my repaying you, yet, without a promise, it is due; and your swearing that you never promised to repay me, does not liberate, because it is presumed and included; and you depone on a point in jure anent your own credulity, which is only your erroneous opinion.
Some of the Lords thought Sir Andrew's grounds of compensation not being so liquid nor instantly verified, that they ought to be reserved to a farther liquidation in a process particularly to that effect: But the plurality inclined to receive them hoc ordine, without multiplying pleas; and so found that employment imported an obligement to refund expenses; and ordained Sir Andrew to give in his account of disbursements and expenses in negotiating Mr Gordon's affairs, and how he would instruct the same; and declared, after hearing objections, they would modify the same.
