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Scottish Court of Session Decisions >>
John Irving of Drumcoltran, v John and Robert Corbets, and Partners. [1709] Mor 2548 (4 January 1709)
URL: http://www.bailii.org/scot/cases/ScotCS/1709/Mor0602548-005.html Cite as:
[1709] Mor 2548
Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. I.
Nature of Compensation.
John Irving of Drumcoltran, v. John and Robert Corbets, and Partners
Date: 4 January 1709 Case No. No 5.
Members of a Company decerned to relieve the keeper of the books and cash, ante redditas rationes, of certain sums of money borrowed by him for their and the Company's use, ex eorum mandato.
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In the process at the instance of John Irving against John and Robert Corbets and partners, for repayment of certain debts he had borrowed, by their warrant, for the use of the Company, while he was concerned in the management of their affairs,
Alleged for the defenders; The pursuer being both their factor and cashkeeper, he is obliged to count and reckon before he could seek any relief: Seeing ante redditas rationes he was presumed to have sufficient effects of theirs in his hands to answer all his disbursements.
Answered for the pursuer; It were unaccountable hardship to leave the pursuer to immediate distress for money borrowed by him ex mandato of the defenders, for their use, without relief till the issue of a count and reckoning, which may depend some years: And if mandates of this kind did not import a renouncing of any compensation or retention, upon the account of a society-debt, till accounts be stated and cleared, and a liquid balance in the mandatary's hand, no manager would ever engage his private credit for the Company.
The Lords repelled the defence, and decerned against the defenders for the sums commissioned by them to be borrowed by the pursuer; he always finding caution to pay what should be found due to them in the event of the count and reckoning.
