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Scottish Court of Session Decisions >>
Alexander Brown, Merchant in Edinburgh, v Hary Dow, Writer there. [1707] Mor 13224 (23 December 1707)
URL: http://www.bailii.org/scot/cases/ScotCS/1707/Mor3113224-032.html Cite as:
[1707] Mor 13224
What if the payment or satisfaction be of that nature not to be proveable by witnesses? Qualified declaration. A party's subscription being referred to his oath, whether he can adject the quality that his obligation is conditional, when the deed bears it to be pure ? Where the terms of agreement are referred to oath, whether the quality of the endurance of the agreement, being for a limited time, is intrinsic or extrinsic?
Alexander Brown, Merchant in Edinburgh, v. Hary Dow, Writer there
Date: 23 December 1707 Case No. No 32.
Oath acknowledging the receipt of money pursued for, but that the same was expended by the deponent in payment of the owner's debt, found not to instruct the payment, as being an extrinsic quality.
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Alexander Brown, as assignee by Thomas Wordie, merchant in Stirling, having pursued Hary Dow for an account of money received by him from the cedent, and referred the same to his oath; he deponed, acknowledging receipt of the money, but added, that as he received it, so he expended the same upon Wordie's law affairs before the session, and in payment of his creditors.
Alleged for the pursuer; The quality of the oath is extrinsic, and the defender ought to give a particular condescendence of his debursements on the pur suet's affairs, that it may be considered if they ought to be allowed; and as to what was paid to creditors, the bonds or bills satisfied must be given up to Wordie with their discharges, that he may be out of hazard of being distressed again for these debts; till all which be done, it cannot be known whether Mr Dow hath taken discharges or assignations to the debts.
Answered for the defender; No quality of an oath can be intrinsic, if payment is not; an agent's debursement's in law affairs requires no instruction but his account; and the quality must also prove the payment to creditors, seeing where there is no other mean of probation against a person but his oath, he may thereby exoner himself of his acknowledgment by the circumstantiate quality of payment, 28th May 1629, Gall contra Eviot, infra, h. t.; 10th July 1632, Lord Fenton contra Drummond, No 36. p. 13228.
The Lords found the quality extrinsic, and that Hary Dow must instruct otherwise than by his own oath, what he paid to Wordie's Creditors.
