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<DATE>2012-08-10</DATE>
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<NAME>John Pas</NAME>
<RESP>MURP</RESP>
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<ITEM>Proofed and reviewed as part of batch B120614.pdcc.</ITEM>
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<IDG S="marc" R="UM" ID="A25495">
<STC T="W">A3277</STC>
<STC T="C">R38498</STC>
<BIBNO T="oclc">17513094</BIBNO>
<VID>106531</VID>
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<TEXT LANG="eng">
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<DIV1 TYPE="text">
<PB N="1" REF="1" MS="y">
<HEAD>ANSWERS FOR The African Company To the Petition pre&s;ented by Sir <HI>John Swinton.</HI></HEAD>
<P>Sir <HI>John,</HI> <GAP DESC="illegible" RESP="KEYERS" EXTENT="1 span"> and <HI>Sw<GAP DESC="illegible" RESP="KEYERS" EXTENT="3 letters">, &amp;c.</HI> (having been <GAP DESC="illegible" RESP="KEYERS" EXTENT="1 span"> the fir&s;t Fourth Part of the Money, Sub&s;cribed) granted a Recept of 750 <HI>l.</HI> Sterline to the Lady <HI>Hoptoun</HI> and her Son on the 28 of <HI>February</HI> 1696,</P>
<P>This Money is not po&s;ted in their Books as Ca&s;h received, but in place thereof a Bond granted by Mr. <HI>Wat&s;on</HI> (of a days date po&s;terior to the fore&s;aid Receipt) bearing to be for the Lady and her Sons &s;hare &s;ub&s;cribed.</P>
<P>The Lords have found, all the Sub&s;cribents of the Recept lyable <HI>in &s;<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">lidum,</HI> notwith&s;tanding that the Committee of The&s;aury got up Mr. <HI>Wat&s;ons</HI> Bond with the re&s;t. And that twice, fir&s;t in a pur&s;uit again&s;t Mr. <HI>Blackwood,</HI> whereto Sir <HI>John</HI> was called; And now in the pur&s;uit, directly again&s;t him&s;elf for the fore&s;aid 750 <HI>lib.</HI></P>
<P>Sir <HI>John</HI> reclaims on the &s;ame Grounds that were debate in pre&s;ence, craving, <HI>1mo.</HI> That he may not be &s;ound lyable <HI>in Solidum,</HI> but for his proper Fact. <HI>2do.</HI> At the lea&s;t, Mr. <HI>Blackwood</HI> ought to be fir&s;t di&s;cu&s;&s;ed, as having had a particular Admini&s;tration <HI>3tio.</HI> That this pur&s;uit being carried on upon Mr. <HI>Blackwoods</HI> Expen&s;es, it may be &s;u&s;tained again&s;t him (as if it were in his own Name for Relief) that he being intru&s;ted with blank Receipts, his giving one for Ca&s;h, and not for a Bond, was his proper Deed. Or his not &s;tating the Accompt fairly to the Company, and obtaining Exoneration from them thereon, was his own neglect.</P>
<P>It is An&s;wered,</P>
<P>To the fir&s;t, That it has been hitherto thought a principal, that Mandatars, e|&s;pecially <HI>in facto pre&s;tando;</HI> Or (as the Petition terms it) <HI>in individuo,</HI> are lyable <HI>in Solidum,</HI> which is &s;o obvious, and was &s;o by the common Law every where re|ceived. <HI>Lbo.</HI> &sect; 3. <HI>ff. Mandat.</HI> That there needs no rea&s;oning on the head; e&s;peci|ally in Favours of a publick Society, who&s;e Managers might otherwi&s;e, &s;end off &s;ome of their Number with the effects whereof tho&s;e who remain might par|take by conveyances legally undi&s;coverable.</P>
<P>To the 2d. Its equally clear, that the Deed of Managers jointly tru&s;ted, divid|ing the Admini&s;tration betwixt them&s;elves, can never alter the Condition of their Obligement to their Con&s;titutes, who did not approve thereof. And thus it was, even in the <HI>Roman</HI> Law, when the Admini&s;tration of the Tutory was not divided by the De&s;unct who appointed them, or by a Judge. And &s;eing the Petitioner re|quires a Deci&s;ion, it is expre&s;ly decided <HI>February</HI> 22 1634, <HI>David&s;on</HI> contra <HI>Jack,</HI> That two Tutors, both of them Sub&s;cribing a Receipt jointly, the one was found lyable <HI>in Solidum,</HI> tho the other was the Pur&s;uers Uncle. And my Lord <HI>Stair lib.</HI> 1 <HI>Tit.</HI> 6. N. 23. ob&s;erves, That the order of di&s;cu&s;ing the Tutor who did Admini&s;trat in the fir&s;t place, does not obtain by our Cu&s;tom.</P>
<P>Nor ought it to be otherwi&s;e in Managers appointed by a publick Society, be cau&s;e the Rea&s;on is the &s;ame, or greater. For as the tru&s;ting one of the under Managers, is not the Deed of the fir&s;t Con&s;tituents: So a party delegat, cannot
<PB N="2" REF="2">Subdelegat another; and &s;uch under Managers <HI>&s;e&s;e offerendo,</HI> did &s;ubject them|&s;elves to the Hazard.</P>
<P>To the 3d, it is An&s;wered,</P>
<P N="1"><HI>1mo.</HI> That its not proven, if, or how far, the pur&s;uit is to Mr. <HI>Blackwoods</HI> be|hoof. For there is a publick order of the Council-General to their Ca&s;hier, for rai&s;ing and in&s;i&s;ting therein. But further,</P>
<P N="2"><HI>2do. Et &s;eparatim,</HI> Suppo&s;e it be offered to be proven, that this pur&s;uit is for Mr. <HI>Blackwoods</HI> behoof, in whole or in part; yet there is nothing relevantly &s;aid again&s;t him for excluding him from Relief, he alwi&s;e deducing his own &s;hare. But on the contrair, its mo&s;t ju&s;t that Sir <HI>John</HI> &s;hould bear his own part of the burden Becau&s;e,</P>
<P>In the fir&s;t place, its not Relevant to alledge, That blank Receipts were in tru&s;ted to Mr. <HI>Blackwood,</HI> unle&s;s it be &s;aid and proven that this w<GAP DESC="illegible" RESP="KEYERS" EXTENT="2 letters"> done at or be|fore the 28 of <HI>February</HI> 1696 (which was the date of the Receipt granted to the Lady <HI>Hopetoun</HI> and her Son) or that that particular Receipt was &s;o intru&s;ted, ei|ther of which would be mo&s;t fal&s;e.</P>
<P>For if all the&s;e under Managers acted jointly and promi&s;cuou&s;ly (which is true, and pre&s;umed to be &s;o) at the beginning when Sub&s;cribents came in throng with their &s;hares: It is nothing to the purpo&s;e, albeit, Ten or Twelve Weeks there|after, Mr. <HI>Blackwood</HI> had attended be&s;t in the Office, when perhaps one or two would not come in in a whole day. And tho he had got &s;ome blank Receipts &s;ub&s;cribed by tho&s;e who went about their own Affairs while he waited the Drug|rie of the Office.</P>
<P>In the next place, Such a Tru&s;t, even at or before the dare of the Receipt in Que&s;tion, is only probable by Write or Oath of Mr. <HI>Blackwood.</HI> For Sir <HI>Johns</HI> Ob|ligement ari&s;ing from his Sub&s;cription, being in Write, cannot be taken away any otherwi&s;e.</P>
<P>E&s;pecially con&s;idering that the Sugge&s;t <GAP DESC="illegible" RESP="KEYERS" EXTENT="1 span"> again&s;t Mr. <HI><GAP DESC="illegible" RESP="KEYERS" EXTENT="4 letters">kwood,</HI> are unfair and Calumnious: It being mo&s;t certain, that at that time Mr. <HI>Blackwood</HI> was not bound for Mr. <HI>Wat&s;on,</HI> nor owing to Mr. <HI>Wat&s;on</HI> one Sixpence; Whereas, on the contrair, Sir <HI>John</HI> was owing to Mr. <HI>Wat&s;on</HI> above 40000 Merks; and in con&s;ideration whereof Mr. <HI>Wat&s;on</HI> can declare, that it was at Sir <HI>Johns</HI> particu|lar de&s;ire that the Receipt was given, and the Bond taken, as afore&s;aid.</P>
<P>In the 3d. place, Mr. <HI>Blackwood</HI> at Compting with the Committee of the Com|panys Tre&s;aury, neither could have done, nor obtained any more then he did.</P>
<P>For clearing whereof, the Lords would be plea&s;ed to be informed, <HI>1mo.</HI> That Sir <HI>John</HI> was per&s;onally pre&s;ent in the Sederunt which appointed the Accompts of the Money and Bonds to be called for and taken in, &s;o that he cannot pretend Ignorance thereof. <HI>2do.</HI> Tho <HI>Mr. Blackwood</HI> had Twenty times demanded it, yet neither the Committee of the Trea&s;ury, no, nor the Directors would or could have taken Mr. <HI>Wat&s;ons</HI> Bond for Ca&s;h. For this being the lending out of the Money actually received from one, not to him&s;elf (which even needed an order of the Council General) but to another third party, was not in the power, as not be|ing in the In&s;tructions, or de&s;ign of the Direction, &s;o that Mr. <HI>Blackwood</HI> was in no neglect in omitting what was needle&s;s.</P>
<P>But the Company adheres to their Grounds in Law for making <HI>Swintoun</HI> lyable as well as Mr. <HI>Robert Blackwood:</HI> And what is further propo<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">ed, is only to evidence their impartiality in pur&s;uing the one as well the other.</P>
<P>In re&s;pect whereof, the Lords ought to adhere &s;imply to their former Interlo|cutor, &s;o far as it &s;hall not be proven that the Company hath received actual payment. As al&s;o adhere thereinto, even <HI>quoad</HI> the Remainder beyond Mr. <HI>Blackwoods</HI> own &s;hare (which &s;o far it is to his behoof he mu&s;t deduce) in regard the Petitioner cannot prove <HI>&s;cripto vel juramento,</HI> that Mr. <HI>Blackwoods</HI> Tru&s;t from him was prior to the date of <HI>Hopetouns</HI> Receipt, and the offering a third Parties Bond for Money payed in by another, had been Fru&s;traneous.</P>
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