Rules of accounting. - Right to salary. - Malversation.
Patrick Heriot, Merchant in Fisher-row, v. Archibald Ker, Writer in Edinburgh
Date: 22 June 1711 Case No. No 13.
A factor on a bankrupt estate was allowed no factor-fee, in respect he had been negligent, and had given up, in his accounts, some articles as due, that had been really paid to him.
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In the count and reckoning at the instance of Patrick Heriot, and the other Creditors of Monkton, against Archibald Ker, late factor to the estate, the Lords refused to allow any factor-fee to the said Archibald Ker, in respect he had been negligent, and had given up, in his accounts, two articles of rests that had been really paid to him. Albeit it was alleged for Mr Ker, That this could be no reason for denying him a salary, because his negligence prejudiced nobody but himself; he being liable to the creditors for what is lost thereby without any allowance of expenses, which his doing of diligence would have cost them, and perhaps, at the long-run, would not have operated their payment; so that it is more advantageous to the creditors, that Mr Ker hold count to them for the rents, than that he could instruct ineffectual diligence done by him for recovery thereof; and, there is no more reason to refuse him a salary, than there is to detain a servant's fee, upon the account of some things lost by him to his master, albeit the servant had made up his master's loss. For the Lords thought, that Mr Ker, who had been negligent, and put his constituents to great charges in rectifying the mistakes in his accounts, had no title to any salary; or if he had, their damage and interest did compensate the same. Besides, that the allowing him a salary, would encourage factors to endeavour to wrong their constituents.
