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Scottish Court of Session Decisions >>
Rodger Gordon of Troquhen, v John M'Ghie of Balmaghie. [1711] Mor 11529 (27 November 1711)
URL: http://www.bailii.org/scot/cases/ScotCS/1711/Mor2711529-206.html Cite as:
[1711] Mor 11529
Payment being made, who understood to have advanced the Money.
Rodger Gordon of Troquhen, v. John M'Ghie of Balmaghie
Date: 27 November 1711 Case No. No 206.
One of two correi debendi took receipts for money, some of them bearing for himself and for behoof of the other, others of them not mentioning this. The former were presumed to have been advanced in proportion by the other party.
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Rodger Gordon of Troquhen, and the deceased Alexander M'Ghie of Balmaghie having granted bond to Mr John Birnie for 1000 merks principal, bearing annualrent, Troquhen pursued John M'Ghie, now of Balmaghie, as representing Alexander M'Ghie, his grandfather, for payment of the equal half of some years annualrent of the bond, which the pursuer alleged he had paid to Birnie the Creditor, conform to several discharges produced, whereof some bear receipt of annualrents by Mr John Birnie, from Troquhen for himself, and in name and behalf of Balmaghie; and some bear only receipt of the annualrents from Troquhen, without the addition of for himself, and in name and behalf of Balmaghie.
Answered for the defender; The pursuer can only ask re-payment from the defender of annualrents whereof the receipts bear the money received from Troquhen. For annualrents paid upon discharges mentioning receipt of the money from the pursuer for himself, and in name and behalf aforesaid, are presumed to have been advanced by both equally; and Troquhen has been only the carrier.
Replied for the pursuer; The tenor of the discharges mentioning the money to be received from the pursuer, prove it was his money, unless redargued; for the addition, In name and behalf of Balmaghie and Troquhen, sheweth only, that the debt was totally extinguished as to the creditpr. And had the half of the money been Balmaghie's, the discharge would not have born simply, Received from Troquhen, but received from Troquhen and Balmaghie.
The Lords found, That the defender ought not to refund to the pursuer the half of the annualrents, whereof the discharges bear receipt of the money from Troquhen, for himself, and in name and behalf of Balmaghie; but only that he should refund to him the half of those annualrents paid upon receipt of the money simply from Troquhen, without the foresaid addition of for himself, and in name and behalf of Balmaghie.
Fol. Dic. v. 2. p. 152. Forbes, p. 550.
*** Fountainhall's report of this case is No 72. p. 3539, voce Diligence.
