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 Drummond's Heir v. James Smith
Date: 13 July 1709
Click here to view a pdf copy of this documet : PDF Copy
Lord Minto reported Drummond against Smith. James Smith, in Lundy, sells a bargain of bear, belonging to Mr James Drummond, minister of Kinneuchar, to one Meikle, a brewer in Leith, and takes the obligement in the contract for the price in his own name. Meikle having paid a part of it, breaks; and Drummond's heir pursues Smith for payment of the remainder. And he alleging, that he was but a factor for Mr Drummond, what he did factorio nomine cannot bind the price on him, to make up what Meikle, the bankrupt, has fallen short in: And there being a decreet in foro obtained against him, he suspends on thir reasons, That, since the extracting of that decreet, he has recovered papers which clearly instruct his allégeance, that he was only acting as a friend to serve Mr Drummond, the minister, and ought not to suffer for his kindness; seeing officium nemini debet esse damnosum; and he produces a receipt of Mr Drummond's, to the said Meikle, for £68, as a part of the price of the said victual, and a letter giving him a supersedere on his paying £30 sterling presently; by which it now appears it was the minister's victual, and he betook himself singly to Meikle, and did not look on Mr Smith as his debtor; and that thir were writs newly come to his knowledge, which sufficiently took off the defence of Competent and Omitted. And they alleging he knew of these papers at the time of the first decreet, he has deponed negative.
Answered,—They opponed their decreet in foro, which was plainly res judicata; and there is no decreet safe, if the pretence of new-found-out writs be received to open the same; for as L. 19 and 20 Cod. de Transact, refuses to annul transactions sub prœtextu instrumentorum nuper repertorum, so the same must extend to sentences, which are judicial transactions. And his oath was not parte deferente, but taken ex officio judieis: And the writs produced, though they were competent here, as they are not, yet are not relevant to infer Mr Smith was factor. For what hinders me to lift my debtor's money in Meikle's hand, if he take his hazard to rely on my warrandice?
The Lords thought it dangerous to loose decreets in foro on the pretence of writs noviter venientes ad notitiam, though offered upon oath; yet here they were not straitened to decide that point, but found the new writs founded on not relevant, though they had been proponed before sentence; and therefore sustained the res judicata: but appointed the partial payments Drummond had received from Meikle to be deducted and allowed; and found Smith only liable for the remainder of the price of the victual.
