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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ayton and Company v Harry Cheap and Others. [1769] Hailes 290 (11 March 1769)
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Cite as: [1769] Hailes 290
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[1769] Hailes 290
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 SOCIETY.
Subject_3 Copartnery, not bound by a commission executed after dissolution, by death of one of the partners, or given by one partner while ignorant of the death of the other.
Date: Ayton and Company
v.
Harry Cheap and Others
11 March 1769 Click here to view a pdf copy of this documet : PDF Copy
[Faculty Collection, IV. 170; Dictionary, 14,573.]
Hailes. If the first part of the Ordinary's interlocutor is altered, it will follow,
of necessary consequence, that no man can know whether he is contracting with a single person or with a company. This will be the case when a merchant in this country deals with a person in London, but much more so when he deals with persons beyond sea: he cannot know whether the company subsists or is dissolved by the death of any of its number. President. Goods commissioned on the 26th March were certainly a burden on the company; but I think that the goods commissioned on the 22d May, when Cheap's death was not known, must also be a burden of the company.
Auchinleck. Ayton was not in knowledge of the company being dissolved when he executed the commission of the 26th March.
Kaimes. Ayton was not bound to believe a newspaper: his information ought to have come from the surviving partner. Suppose the intelligence of Cheap's death had proved false, could he have justified himself for not sending the goods, because he had seen Cheap's death in a newspaper?
Justice-Clerk. Ayton was not bound to believe a newspaper, suppose he had seen it, as the partner did not inform him of Cheap's death. The commission of the 21st May came to hand in course. It was certainly accepted; for, if the goods had not been sold to the company, they might have been sold to some one else.
On the 2d March 1769, “the Lords found the company liable for both parcels of goods.” And, on the 11th March, “adhered;” altering Lord Pitfour's interlocutor as to the second parcel.
Act. R. M'Queen. Alt. D. Rae. Diss. as to the second parcel, Affleck, Elliock.
Non liquet, Pitfour, Kaimes.
[Reversed on appeal.]
The electronic version of the text was provided by the Scottish Council of Law Reporting