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Scottish Court of Session Decisions >>
Bruce of Bordy v Keirie of Gogar. [1692] Mor 4060 (15 December 1692)
URL: http://www.bailii.org/scot/cases/ScotCS/1692/Mor1004060-012.html Cite as:
[1692] Mor 4060
Rules of accounting. - Right to salary. - Malversation.
Bruce of Bordy v. Keirie of Gogar
Date: 15 December 1692 Case No. No 12.
As at what period chargeable with the price of victual sold.
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The Lords thought the margining the act by Charles Oliphant unwarrantable, bearing a restriction of Harry Dow's sum of 20,000 merks to 13,000 merks, seeing he should not have given out the act in these terms: And found by Gogar's back-bond, he was a trustee thus far, that he having not paid the full price for the lands, as to any sums of Bordy's he transacted, he could not charge Bordy with any more than what he actually paid, and that the eases behoved to accresce to him; and therefore, before answer, whether they would loose the act in that point or not, they ordained Keirie to give his oath of calumny, whether he did not compone Dow's debt for 13,000 merks, less or more. See Writ.
1694. June 20.—The Lords found Kiery not accountable any farther for the emoluments of the commissariot but conform to the accounts of the factor put in by the Lords, and that the said factor shall only account for actual intromission since 1680, when he was debarred by Bordy, on pretence that Gogar was paid of the sums for which he had a right to the commissariot dues, in corroboration. The question arose, if the instrument taken contra Bordy sitting in judgment was probative, his oath of calumny being taken at the bar, and he not positive. The witnesses insert were ordained to be examined. The second question was, Whether the Sheriff's fiars were to be the rule, or the prices set by the regality of Dumfermline, within which the lands lay. But the Lords chused the Sheriff's fiars, in regard the other are more properly made in modum penæ between master and tenant, in case of not delivering the victual.
Fol. Dic. v. 1. p. 288. Fountainhall, v. 1. p. 532, 620.
