JAMES SIM v CHARLES CLARK (Court of Session)

The members of the congregation having joined themselves to another in the same village, the church was shut up, and the value greatly deteriorated, no part of the L.200 having been paid to the pursuer, and considerable arrears of interest being also due.

In 1828, the defender cited the committee in an action of declarator of irritancy ob non solutum canonem, and obtained decree (12 June); but in this action the pursuer was not made a party.

It was answered —That it had been settled by judgments of the Court in various cases, that it was incumbent upon an agent, in the situation of the defender, to look to the interests of both parties in such a transaction. Although nominally employed by the borrowers of the money, he was bound at common law, as well as by the instructions he received, to see that the usual and necessary securities were taken in favour of the lender; and having failed in this duty, he necessarily became liable in all the consequences of his ignorance or neglect.

The Lord Ordinary sustained the defences, assoilzied the defender, and decerned, and found the defender entitled to expenses.

But the Court , after hearing counsel for the parties on a reclaiming note for the pursuer, ‘Altered the interlocutor reclaimed against, repelled the defences for Charles Clark, and decerned against him, conform to the conclusions of the summons; but found that he is entitled, on payment to the pursuer, to an assignation of the debt, so as that he may operate his relief as accords; found the defender liable in expenses,’ &c.