| Radcliff and Company, and their Attorneys v. Loch |
1777
|
Constat de Persona, Mistaken Identity, Cautioner, Misnomer |
In June 1776, William Loch of Hawkshaw was visited at his home in Edinburgh by a man named Alexander Carrick. Loch believed Carrick to be the son of an old acquaintance, an honest farmer by the name of James Carrick. This supposed Alexander Carrick informed Loch that William Cumming and Son threatened him with diligence in light of a bill owed to Jonathan Radcliff and Company, merchants in London. Alexander Carrick asked Loch to assist him with making payment, and Loch obliged. He wrote a letter addressed to Cumming and Son in which he referred to Alexander Carrick as "Robert." Upon viewing this letter, Carrick informed Loch that it was "good for nothing" since his name was not Robert but Alexander. Upon realizing that this man was not the son of James Carrick, Loch refused to write him another letter. Several months later Cumming and Son brought a process against William Loch for the payment of this bill. After Lord Barskimming dismissed the libel, Loch petitioned the Court, arguing that his endorsement of "Robert Carrick" was a case of constat de persona - "the man being designed in such a manner as could apply to him only, and to no other person." The pursuers answered that except for the Christian name, every other detail in Loch's letter accurately described Carrick: that he was a merchant in Grassmarket who owed a sum of 49 l. 7s. to Cumming and Son on behalf of Radcliff and Company. |
