Scottish Court of Session Decisions

Subject_1 CONDICTIO INDEBITI.

Earl of Peterborrow
v.
Mrs Muriiay

Date: 25 June 1745
Case No. No. 2.

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Hugh Sommervell, who was agent for this Earl of Peterborough, received from his factor L.50 sterling, and gave him receipt and obligment to hold account, but forgot to state it in his books on clearing the factor's accounts. The accounts were generally left in Mr Sommervell's hands till next clearance, and the vouchers retained by the Earl of Peterborrow. After Mr Sommervell's death his succession devolved on the wives of Mr James Geddes and Mr Hugh Murray, and Lord Peterborrow's accounts being drawn out from his books, wherein the L.50 was omitted. Lord Peterborrow paid them the balance without confirming, and got up his writings and factor's accounts from which this L.50 was discovered; and now he sues Mr Geddes and his Lady, and Mrs Murray as representing her father for payment of the L.50, Mr Murray being dead and insolvent. Mr Geddes made no opposition; but for Mrs Murray it was alleged, that her father was not debtor, and she did not represent her husband; but in respect Mr Sommervell's receipt contained an obligement to hold account, and that Earl of Peterborrow had paid Mr Murray bona fide upon the faith of the exactness of Mr Sommervell's books; therefore we repelled the defences, and found her liable. Vide Colonel Erskine against Earl of Lauderdale, No. 2, voce Annualrent.(See Dict. No. 10. p. 2930.

See Notes.