Sir William Johnston of Westerhall v. The Marquis of Annandale
Date: 21 June 1726 Case No. No 4.
The actions negotiorum gestorum, in rem versum, and funeraria, found not competent, where the pursuer acted upon another's mandate, without immediate intention to serve the defender.
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Sir William Johnston, upon an order from the Marchioness of Annandale to raise money for defraying the late Marquis's funerals, by which order she obliged herself to indemnify him for the same, having uplifted the sum of L. 482 of by gone rents from Henderson, one of the late Marquis's factors; this Marquis brought an action against him, to account for this and other intromissions; and Sir William brought a counter action against the Marquis, for cognoscing the charges of the funerals, and for declaring, that the money uplifted from Henderson being laid out that way, ought to be sustained as a sufficient article of discharge and exoneration.
It was pleaded for the Marquis, That Sir William having followed the faith of the Marchioness in raising the money by her order, the presumption is, that he acted solely in consequence of that order, with a view to serve the Marchioness alone; and there is no presumption, that he had an intention to oblige the heir; whence, as he could have no actio negotiorum gestorum, in rem versum or funeraria, against the heir, in his own right, but in name of the Marchioness, his employer; so now when he is pleading a discharge and exoneration against the heir, he cannot separate himself from the Marchioness; for that discharge being founded upon the application of the rents to the funerals, which, in the eye of the law, is the Marchioness's deed, according to this maxim, “Qui facit per alium, ipse facere videtur,” if he plead upon her deed, he must sustain all the legal objections competent against her; and were she in the field, it would be competent for the Marquis to plead against her, that intus babuit, by her intromission with her deceased husband's executry in England; and that, therefore, she could not plead upon the application of the rents intromitted with in Scotland, to the defraying of the funerals, which she had no title to uplift.
It was answered for Sir William, That the actio negotiorum gestorum, in rem versum or funeraria, arises from the fact of applying money for another's behoof, whether the intention was to serve that other or not; thus Sir William having uplifted the defunct's rents, and applied them to his burial, it was utiliter gestum, and he must be exonered at the hands of all concerned; and it matters not whether he acted by a mandate or not; for, what prejudice is it to the Marquis, that Sir William took a further pactional security from the Marchioness, for his own safety? So then, if any man lay out money profitably, for the behoof of another, suppose he take a third party bound to indemnify him, that is but an additional security; and the person that lays out the money, has it plainly in his choice, to pursue him for whose behoof the money is laid out, or to take himself to the additional security given by the third party, who becomes engaged to keep him skaithless. And when the action is directed against the person benefited, it is plainly in the pursuer's own right, as being founded upon his fact of application; and, therefore, he cannot be obliged to sustain any objection that might be competent against his mandant.
Replied, When a master gives orders to his servant to do any fact, the actions arising therefrom are competent to the master alone. Thus Sir William Johnston is only to be considered as the Marchioness's hand; as he laid out the money by her order, he has no action or exception, but as in her right: For, in general, it signifies not who acts, but in whose name, and by whose authority.
“The Lords found Sir William could be in no better case than the Lady Marchioness.”—See Recompenge.
Fol. Dic. v. 2. p. 4. Rem. Dec. v. 1. No 84. p. 169.
*** Edgar's report of this case is No 3. p. 8486. voce Mandate.
