Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES FERGUSON OF KILKERRAN.

Stevenson and Company
v.
Robert Macnair, and Two Others, Partners of the Annan Fishing Company

Date: 14 December 1757

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This case is reported by Kames (Sel. Dec. No. 135, Mor. 14,667.) and in Fac. Col. (Mor. 14,561.) Lord Kilkerran's note of the judgment is as follows :—

“December 14, 1757. Found that the partners are not liable beyond their subscriptions, and that the process has not been properly brought, and remit to the Ordinary to proceed accordingly.

“The President—That in all societies, there is no bringing partners into Court, without calling either the managers or the whole partners. 2dly, M'Nair had sold out before the action was brought. 3dly, The pursuers own they had three shares themselves ; must they not at least discount their own shares ? 4thly, Suppose the company insolvent, how can any subscriber be liable but for his subscription? unusquisque debet scire conditionem ejus cum quo contrahit.”

N.B. There is a material discrepancy between Lord Kames' report of this case, and that given in the Fac. Col. The latter represents the judgment as having proceeded solely on the ground “that all parties having interest were not called into the field;” while the former represents it to have proceeded on the opinion of the Court, that the several partners were not liable beyond the amount of their subscriptions. Lord Kilkerran's notes confirm this last account.