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Scottish Court of Session Decisions >>
James Paterson, Writer in Stirling, v Lady Houston. [1738] Mor 6551 (15 February 1738)
URL: http://www.bailii.org/scot/cases/ScotCS/1738/Mor1606551-014.html Cite as:
[1738] Mor 6551
James Paterson, Writer in Stirling, v. Lady Houston
Date: 15 February 1738 Case No. No 14.
A party who had empowered a proxy to act for her, was found not to be bound to consequence of the obligation incurred, not mentioned in the procuratory given.
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Lady Houston having an interest in the parish of St Ninians, wrote a letter to Sir Hugh Paterson, empowering him to vote in her name, and sign a call in favours of Mr Mackie to be minister of the said parish; and then adds, “Upon doing whereof, and what else is necessary for me in that affair, I hereby oblige me to hold as sufficient as if I had done so myself.” The settlement having met with opposition, such of the heritors, who had signed the call, assessed themselves, in order to raise a fund for defraying the expenses; for payment of a proportion whereof, a process was raised against Lady Houston, founded upon the above letter.
The defence was, That it imported no more than the giving a proxy to vote in the call, which could not subject the defender to the expenses. And, as to the latter part of the missive, it was plainly relative and executive; for the words, “and what else,” &c. could only be understood of what was naturally consequent upon the call's being approved of by the presbytery, namely, the declaring her submission to Mr Mackie as minister of the parish, in case of a settlement; and, as the assessments were laid on without any authority from the defender, they could not affect her.
Answered for the the pursuer, That, though Lady Houston had not added to her proxy the general power of doing all things necessary for obtaining the settlement, but had only signed the call by herself or proxy, it is believed that would have been sufficient, per se, to oblige her to pay her proportional share of the necessary expense, the joining in such an affair being a tacit entering into a society for that particular, which subjects every member thereof to his quota of the necessary charges; but it was improper to argue the general point here, as the proxy founded on bears expressly to do every other thing necessary. Now, the only thing requisite in that affair, besides the voting for and signing a call, was the adjusting the proportion by which the charges, in obtaining that settlement, were to be paid by each individual who concurred therein, and laying the same out reasonably; all which has been done in this case.
