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Patrick Murray v Sir Thomas Kennedy. [1696] 4 Brn 330 (24 November 1696)
URL: http://www.bailii.org/scot/cases/ScotCS/1696/Brn040330-0706.html Cite as:
[1696] 4 Brn 330
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Patrick Murray v. Sir Thomas Kennedy
Date: 24 November 1696
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Between Patrick Murray, the Collector, and Sir Thomas Kennedy, who quarrelled an article in his account of £413 sterling, paid to Charles Murray of Halden, his father, on this ground, that, by his commission, he was allenarly bound to pay in the excise to Sir Thomas, and so he could not invert and misapply at his own hand.
Answered,—The payment was warrantable and legal, 1mo. Because Halden was a partner in the tack, and his share will, in the event of the count and reckoning, be more; and he paid others without any special order from Sir Thomas; and these are not quarrelled, so it is invidious to refuse this. 2do. By a stated account, Sir Thomas acknowledges he has received up all the instructions of the articles of the account, except this of Halden's; ergo, there was no more objected against it but the want of instruction, which is now produced.
Replied to the first, Non constat what his share will be, and whether there will arise profit or loss from the tack; and he was precisely bound to count and pay in to Sir Thomas, and no other; and any payments made to others which were allowed him, was not qua partners, but as commissaries or receivers. 2do. The declaring, at the foot of the account, that this was not instructed, cannot import the passing from any other objections against the relevancy, and allowing of the article.
Yet the Lords found this, conjoined with his father's being a partner in the tack, was a sufficient acknowledgment of the payment, and so the article could not be now quarrelled.
