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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> The Executors of James Barnes v Robert Mastertoune. [1649] 1 Brn 396 (29 June 1649) URL: http://www.bailii.org/scot/cases/ScotCS/1649/Brn010396-1051.html |
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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ROBERT MACGILL, LORD FOORD.
Date: The Executors of James Barnes
v.
Robert Mastertoune
29 June 1649 Click here to view a pdf copy of this documet : PDF Copy
In the action of suspension and reduction at the instance of the executors of
James Barnes against Robert Mastertoune, the Lords found the letters orderly proceeded, notwithstanding the reason alleged, founded on umquhile James Barnes his ticket, which was the ground of the pursuit, bearing, that, notwithstanding the obligement therein, they should, as compartners, ut in contractu societatis, the said Robert should bear a like hazard and risk with the said James; but so it was that the cairyies which are in question were meddled with by a bankrupt, and, consequently, the said Robert ought to lose as the said James; because the hazard pointed at was, if John Wallace, to whom they were directed as factor, should become non solvendo, or should put [them] in an unresponsal man his hand, then they should bear a like risk: or, if the said Robert and James should give order for delivery to any who might be bankrupt, and not where none was so given. But, by the contrary, Wallace being absent, the cairyies were intromitted with by a bankrupt, by the order of the said umquhile James only. There might have been a hazard also understood in bringing them back to the country, if they should have perished, seeing the ticket speaks of the receiving of them, or monies for them, one day after. The Lords would not sustain for the prices conditioned to Barnes, since that given for them in England was proven. Page 21.
The electronic version of the text was provided by the Scottish Council of Law Reporting
