Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 MANDATE.
Subject_3 Action of Relief denied to a mandatory who had furnished goods on an open account, without taking a bill, as stipulated in the mandate, to furnish them.

James Pasley
v.
Thomas rattray

Date: 13 January 1779

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[Faculty Collection, VIII. 91; Dictionary, 8228.]

Covington. It is the same thing whether a bill was taken or not: that was for the security of the person who advanced the money.

Monboddo. Every mandatory must observe his mandate, and execute it in forma specifica. By the mandate credit was to be given to both the brothers; and a bill to be taken at a certain term from both. This was not done: hence a loss to the mandator, who, if a bill had been taken, might have got it indorsed to him, and made good his relief. But, be this as it will, the mandator is not bound; for his directions were not obeyed.

Elliock. How could Rattray have obtained payment when there was no bill granted.

Justice-Clerk. A letter of credit is of the nature of a cautionary obligation. We cannot extend cautionary beyond the intention of the party. The law says, and common sense says, that in executing human transactions you must take in bona fides, and admit of what is done according to the spirit of an obligation, although it may not be according to the letter. But here the mandate was not executed in equipollent terms.

Kennet. The fines mandati ought not to be exceeded; but here what was done was tantamount; and the granter of the letter can qualify no loss.

Braxfield. The observing of the words of a mandate is of no consequence as long as its spirit is observed. No loss is qualified here.

Gardenston. The mandate has not been duly executed. The doctrine of tantamount is dangerous, as introducing arbitrary decisions. If you do not what “I order you, I am not bound.” Suppose that Pasley, instead of furnishing sugar, had advanced money to the same extent, or delivered wine or tobacco to the same extent, it might be said, that by such advance or delivery no loss could be qualified; yet the cautioner, in such case, would not have been bound.

President. The mandate must be obeyed. In all mercantile transactions matters ought to be exactly conducted.

On the 13th January 1779, “The Lords sustained the reasons of suspension;” altering Lord Stonefield's interlocutor.

Act. R. Corbet. Alt. A. Bruce, (dead.)

Diss. Kennet, Covington, Stonefield, Braxfield.