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Scottish Court of Session Decisions >>
Sir James Cockburn v Sir Robert Miln of Barnton. [1694] 4 Brn 226 (14 December 1694)
URL: http://www.bailii.org/scot/cases/ScotCS/1694/Brn040226-0512.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Sir James Cockburn v. Sir Robert Miln of Barnton
Date: 14 December 1694
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Rankieler reported three points in the count and reckoning between Sir James Cockburn and Sir Robert Miln of Barnton. The first was, Whether Sir Robert was bound to produce instructions for the £1200 which Sir James yet wanted of the £24,000 of the salt sent abroad the time of the preemption in 1673. The Lords thought the presumption lay against Sir James; seeing he confessed he had got the instructions of the £23,000, and, by virtue thereof, had uplifted; that it was probable he had also gotten the rest; and therefore ordained Sir Robert Miln to depone if he has any of these instructions, or if he delivered them.
The second was, Who was to be at the expense of the collectors' salaries the time Sir Robert had it? The Lords found, seeing the profit thereof was made over to Sir James, the onus followed the commodum, and he behoved to undergo the burden thereof.
The third was, anent the account of charge and discharge given in by Sir Robert, whereby he charged himself with £17,000, and in the same writ discharges himself; but does not produce the instructions, alleging they were burnt with his house at Leith in 1682; though regularly you cannot both approbare et reprobare, and you must not divide the writ, but take it complexly as I have given it;—as was found between Balnamoon and the Earl of Southesk, in William Carnegie's accounts. Yet, where parties are bound to give in a charge against themselves, as factors, tutors, &c. it were very unjust to suffer them to exhaust their intromission with uninstructed articles of discharge. And here, there being also a back-bond granted by Sir Robert, obliging him to hold count, the Lords found he ought to instruct the said £17,000.
