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Scottish Court of Session Decisions >>
Alexander Simpson v James Weir. [1696] 4 Brn 300 (28 January 1696)
URL: http://www.bailii.org/scot/cases/ScotCS/1696/Brn040300-0654.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Alexander Simpson v. James Weir
Date: 28 January 1696
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Crocerig reported Alexander Simpson, late bailie of Edinburgh, against James Weir of Kirkfield, for the price of some butts of wine and sack sold to the late Duke of Queensberry, but bargained for by the said James Weir, then his servant. Simpson had, by a process, endeavoured to fix them on the Duke; but he deponing that he knew not that these wines came to his use, and offering inspection of his books between his servants and him, Simpson raised a pursuit against Weir, that he might not lose his money betwixt them both.
Alleged,—The very receipts and accounts produced under Mr Simpson's own hand acknowledged they were furnished to the Duke; and, it being but a nudum ministerium on his part, they could never be fixed on him; and the Lords had found, lst November 1665, Howison against Cockburn, that a servant taking off ware from a merchant, in the name of his master, could not be made liable for the price.
Answered,—The count was so stated to Queensberry, and I pursued him at your express desire; and I being in damno vitando, you (who knew best how to instruct that the wines came to the Duke's use,) ought to have looked to your own security and relief.
The Lords thought the case very hard; and therefore, before answer, ordained Weir, the defender, to depone whether he did not advise Simpson to state the wines to the Duke's account, and to pursue; and what documents and evidences he has to clear that the wines came to the Duke's cellars.
