Scottish Court of Session Decisions

The Lord Ordinary ( Mure), after a proof, found it not proved that the money for which the bill was granted was applied for the purposes of the joint-adventure, and accordingly suspended, and found the charger liable in expenses.

The charger reclaimed.

Cattanach (Scott with him) for reclaimer.

Trayner, for respondent, was not called on.

Lord President—The question here is, whether the money was advanced for the purposes of the joint-adventure; the Lord Ordinary has found in the negative, and I think rightly. It seems to me that the evidence makes this perfectly clear, but it is enough that the charger has failed to prove the affirmation. The joint-adventure is said by the charger to have commenced in June 1865. On the other hand, the suspender says it was not till he removed the machine from Hillington Farm on 30th August. It is alleged by the charger that the two persons, Hunter and Dick, entered into an agreement by which they became to a certain extent partners in June, agreeing that they should be bound by the firm of Hunter & Dick. It is said by the suspender that this was not agreed on until November. It seems to me that the suspender is right and the charger wrong. Dick had been in this line of business before communicating with Hunter; and after the machine was bought from Robertson, with an engine ready to work, Dick took the use of the machine during August. During that time Dick used the form of receipts he had used formerly, and used it down to September, when a new form of receipt with “Hunter and Dick” was used, indicating the point of time when the change took place. During June, July, and August, Dick reaped the profits, paid the wages, kept the receipts, and did not communicate with Hunter as to the position of the charger. I cannot say that the charger stands very favourably. His whole conduct shows that he knew he had no one to look to as his debtor but Dick, and that the signature of Dick to the bill was not an honest proceeding on his part. But it is not necessary to go much on that, for the real question here is, whether it is proved that the money was in rem versum of the joint-adventure? I think it was not, and therefore I am for adhering.