The Relict and Children of James Smith v. The Earl of Winton
Date: 1 December 1714 Case No. No 2.
A sum of money being advanced by the manager of an estate to one of the proprietor's friends, who by advice of other relations of the family, went abroad to acquaint him with the state of his affairs, and to solicit him to come home, the Lords found the proprietor himself after coming home, bound to allow the money so advanced, though the friend's journey proved at that time ineffectual.
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The said James Smith having served the late Earl of Winton for many years, in quality of factor or chamberlain, the present Earl being beyond seas when his father and brother died, and not having even then returned, it was concerted, at a meeting of some of his Lordship's friends, that Seton of Tough, and, upon his declining the office, Sir Walter Seton, one of their number, should go abroad in quest of the Earl, in order to inform him of the state of his affairs, and to acquaint him, that there was an absolute necessity of his Lordship's presence to manage his own business. At which sederunt, they also resolved Sir Walter should have L. 100 Sterling for defraying the charge of his journey, out of the first and readiest of the rent of the Earl's estate. After James Smith's decease, his children, as having right by a general disposition, pursue the Earl for payment of the L. 100 Sterling, and annualrents thereof, advanced by the bailie, in manner, and for the end foresaid.
Answered for the Earl; That Sir Walter had no mandate from his Lordship, nor was he under any character that could found such a repayment. 2do, A negotiorum gestio must be necessarily and profitably done, otherwise the negotiator hath his labour for his pains, and he that set him on work must pay him his expenses. And if a man undertake what is insolitum or unusual, he runs the risk thereof himself if it miscarry, negotiations of this nature requiring the most exact diligence that can be proposed; so that, if Sir Walter had no other errant but to give an account how matters stood, this might have been done to as good purpose by a letter.
Replied for the defenders; That they did hot contend there was any express mandate, but a negotium utiliter gestum for the Earl, and that not undertaken by Bailie Smith at random, but with concourse of the friends of the family; and therefore, (in answer to the 2d,) this advance of money was both necessary and profitable, as well in the effect as in the design, the design having been to give his Lordship a particular account of his circumstances, and to solicit his home-coming. And the effect, (though it did not immediately follow, yet) that the friends, by Sir Walter's journey, got knowledge where his Lordship was, so as to communicate with him by letters, and send him bills, which effectuated his return. And as to this negotium, its being insolitum, answered, That when a person absent falls to a considerable heritage, and it not being known where he is, and he keeping no correspondence, his affairs going to confusion without orders, that those interested should take rational methods to prevent these inconveniencies, which may turn to the ruin of the absent's affairs, is not at all negotium insolitum, though it may rarely fall out; but it is a necessary procedure, when fallen out, for the right administration; for insolitum is not what rarely falls out, but the undertaking of a new sort of business, not in the way of usual administration.
The Lords found the Earl liable to refund the L. 100 Sterliug advanced by Bailie Smith to Sir Walter Seton.
Act. Falconer.Alt. Horn.Clerk, Gibson.
Fol. Dic. v. 2. p. 4. Bruce, v. 1. No 11. p. 17.
