BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
James Elies v Catharine Thomson and Lord Castlehill. [1682] 3 Brn 431 (24 March 1682)
URL: http://www.bailii.org/scot/cases/ScotCS/1682/Brn030431-0634.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 24 March 1682
James Elies v. Catharine Thomson and Lord Castlehill
Click here to view a pdf copy of this documet : PDF Copy
In Mr James Elies of Stanhopmiln's cause against Catharine Thomson and my Lord Castlehill, her husband; the Lords, on Saline's report, sustain Castle-hill's defence of compensation, founded on the account produced by him, mentioning more articles than the 20,000 merles; and that, notwithstanding that the bailies of Edinburgh's decreet, founded on by Stanhopmiln, pursuer, mentions and relates to a fitted account; in respect of the said fitted account produced, which they find to be the very account related to in the said decreet; and that in respect of James Elies's declaration produced; and although the account is in some articles delete and scored, and the date of it unclear. This last line anent the deleting was disputed, but was not in the interlocutor; but the Lords went over it.
Then the Lords ordained both parties to count and reckon with each other, on Castlehill's summons against Stanhopmiln, for counting and reckoning, as heir to his father, who was cautioner for the said James Elies, factor at Campvere; which James, the factor, Castlehill alleged, was owing to Patrick Thomson, his lady's father, other sums besides the said 20,000 merks, contained in the bailies' decreet, So that the Lords found, by this interlocutor, (which was very strange,) that neither the fitted account, betwixt Patrick Thomson and James Elies, nor yet the decreet following thereupon, did comprehend all debts and accounts betwixt them preceding their dates; but that Patrick's heirs might yet charge James's representatives, and his cautioners, as factor, with other articles not stated in the said fitted account. Whereas we urged, the Lords might call for the opinion of merchants, and by it they would find that, in their customs, a stated account was presumed, in mercatorian law, between merchants, to include and comprehend all articles they had to charge one another with, preceding the date of that fitted account.
Then a bill was given in against this by Stanhopmilns. But it was refused; only they ordained Castlehill to depone, if, after search among all his father-in-law's papers, he had found, or knew any other account between them, except this vitiated one he produced. Which he denied upon oath.
