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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Farlane's Executors v Fergusson [1835] CA 13_477 (17 February 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0477.html Cite as: [1835] CA 13_477 |
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Page: 477↓
Subject_Agent and Client—Reparation.—
An agent having lost a bill of exchange transmitted to him by his client, held not freed of responsibility for the amount by the circumstance, that the client had subsequently been appointed trustee on the estate of the heir of the debtor in the bill, and had not set apart any dividend for it, but had taken a discharge of his intromissions as trustee, paying over to the heir a balance in his hands—the debt in the bill being disputed by the heir.
Sequel of the case mentioned ante, XII. 824, which see. After it returned to the Lord Ordinary a diligence was taken, which brought nothing material to light; and no further investigation having been sought for, the parties resumed the pleas formerly mentioned, on the point, how far the late George M'Farlane had, by his conduct, freed the defender from responsibility.
The Lord Ordinary pronounced this interlocutor, adding the subjoined note: *—“Finds that the defender is bound to make payment to the pursuer of the sum of £100 Sterling, being the amount of the bill lost by him (the defender), besides interest from and after the 24th day of February, 1821, when the bill fell due, and decerns: finds the defender liable in the expenses incurred by the pursuer, both in this Court and in the Inferior Court.”
Fergusson reclaimed, but the Court adhered, the pursuers assigning to him the debt.
_________________ Footnote _________________
* “The interlocutor of the Court, 7th [26th] June, 1834, reduces the decree of the Sheriff, and, before further answer, remits to the Lord Ordinary to investigate the whole circumstances. The only investigation into which either of the parties has since gone, relates to an action of constitution said to have been instituted before the Sheriff, by the pursuer, against M'Nee, to obtain evidence of which a diligence was granted, the result of which was, the recovery of a process, which, however, has no particular application to this question. In this situation, the case, in so far as the evidence is concerned, stands as it did when last before the Court.
“As to the argument, the defender at the debate admitted his liability, but rested his defence on the plea, that the pursuer, instead of doing all that he could, as in equity bound, to prevent or diminish the loss, had so conducted himself, in relation to M'Nee the debtor, whose trustee he was, that he had either altogether liberated the defender, or had at least excluded himself from now claiming against him for the full sum in the bill, the Lord Ordinary is of opinion, that this plea is not maintainable. The bill having been lost, and M‘Nee having successfully availed himself of this to deny the debt to be due, the pursuer, though his trustee, could not, of his own authority, assume the fact to be otherwise; and therefore this sum cannot be held to have been included under the discharge granted to the pursuer as trustee, or to have fallen under the trust-management at all. No evidence, such as is pointed at by Lord Moncrieff in his note (printed in last reclaiming note), has been adduced by the defender, to show that the pursuer did settle, and ought to have settled this, as a trust debt with M‘Nee, He took his own discharge, and paid over a balance of £40 to his constituent, without reference to the sum in question, for which, the document being lost, there was no evidence.”
Solicitors: J. Livingston, W. S.— R. Burn, W. S.—Agents.
