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Elisabeth Slit and Dickson v William Buntein and John Maxwell of Middleby. [1696] 4 Brn 309 (11 February 1696)
URL: http://www.bailii.org/scot/cases/ScotCS/1696/Brn040309-0669.html Cite as:
[1696] 4 Brn 309
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Elisabeth Slit and Dickson v. William Buntein and John Maxwell of Middleby
Date: 11 February 1696
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Elisabeth Slit, and Dickson her husband, against William Buntein, and John Maxwell of Middleby, agents, upon a summary complaint against them, as members of the Session, that they had taken advantage of them, and caused them enter into a fraudulent and disadvantageous bargain, whereby the said Elisabeth had made over all the benefit of her brother Captain Slit's executry and succession to Middleby, upon his back-bond to pay her the free half of it, he retaining the other half, but defraying all the expenses out of his half; by virtue of which transaction, he craved retention of the half of 7000 merks he owed Captain Slit himself; which Elisabeth and her husband contended was never their meaning, but only to give him the half of what he should recover out of third parties' hands; and that their agreement, (whatever the cortex verhorum might say,) could never in reason extend to what he had in his own hand, which could stand him no expense in recovery.
Answered,—They could not be ignorant of the sum he was owing; for it is confirmed in the testament, and their own son is cautioner; and they were present at componing the dues; and she has judicially ratified the assignation, and has accepted partial payments homologating the transaction; and, by letters, acknowledged the sense of gratitude they had for all his favours.
Replied,—Tacit consent and acknowledgment by homologation is never inferred where ignorance appears, or it can be ascribed to another cause; as was found 6th July l661, Telfer; and December 12, 1665, Barns; and it is plain thir poor people never understood to give him the half of his own sum, viz. 3500 merks, for discovering little or nothing, unless we suppose them to be idiots.
As to William Buntein's gratuity, it was but 300 merks,—a small remuneration for his bygone services, and giving up the papers; and the Lords assoilyied him. But, as to Middleby's agreement, the Lords thought it not so fair, and therefore refused to extend the contract to his own sum, or to allow him the half of it; but declared, though they reponed the complainers, yet he might retain his pains and expenses, to be modified by the Reporter. Some moved, that the witnesses in the back-bond might be examined, whether it was not revealed to them, that he was debtor himself in 7000 merks without any concealment; but the Lords thinking there was dolus ex evidentia rei, they refused to take any farther expiscation or trial.
