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Scottish Court of Session Decisions >>
Howison v Cockburn. [1665] Mor 11604 (17 November 1665)
URL: http://www.bailii.org/scot/cases/ScotCS/1665/Mor2711604-268.html
A servant tock off goods from a merchant in his master's name. He was found not liable personally, and being pursued long after, was not oobliged to instruct his warrant.
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The Executors of David Howison pursue James Cockburn, for the price of several ells of cloth, which the said James, by his ticket, produced, granted him to have received, in name, and for the use of the Laird of Langtoun, his master. It was alleged, Absolvitor, because, by the ticket, the defender is not obliged to pay the cloth, and doth only act in name of his master, and therefore the merchant ought to have called for the account from his master within three years, which he has not done till many years, long after his master's death. It was replied, That the ticket must oblige him, at least, docere de mandato, for his doing in name of his master could not oblige his master, so that if he be not so obliged, the merchant loses his debt, and nobody is obliged. It was answered, That he who acts with any mandatar, should know his commission, and if he does not know it, it is upon his own hazard; but if the mandatar act, not in his own name but his masters, he does not oblige himself; and if servants who receive in their master's name should be thus obliged to shew their warrant, it would be of very evil consequence, seeing their receipt can be proved by witnesses within three years, and their warrant would not be so probable.
The Lords found, That post tantum tempus, the defender was not obliged to instruct his warrant, but the same was presumed to have been known to the merchant, unless it be proved by the defender's oath, that he acted without a warrant, or that he did not apply the cloth to his master's use.
