Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Mr Stanfield, Englishman,
v.
William Hamilton of Wishaw and James Hamilton, Merchant

Date: 23 February 1671

Click here to view a pdf copy of this documet : PDF Copy

In a declarator, pursued at Stanfield's instance, against Wishaw, to hear and see it found that a ticket, subscribed by him and the said James Hamilton, for the sum of £400 sterling, in July I667, was truly paid to James Hamilton, who received the money, and for whose use it was borrowed; and therefore the pursuer should be declared free: Which declarator was founded upon many strong presumptions, viz. That it wanted witnesses, and all solemnities, and did bear no annualrent, but was made payable upon demand. 2d. Never any diligence had been done thereupon near by the space of 40 years, until some differences had fallen out betwixt Stanfield and James Hamilton, albeit, these two years bygone, the said James's estate and condition was known to be weak; nor was there any farther surety demanded of them; albeit Stanfield was a stranger, and going several times to England: And that it was offered to be proven, that the ticket was seen retired in James Hamilton's hands; and that Wishaw and he thereafter had made several accounts for great sums of money, and that they had paid in to Stanfield several sums of money, without craving retention, or making mention of this ticket; and that they did of late raise an inhibition against Stanfield, and, by indirect means and contrivances, did study to conceal the same, by giving orders to the messengers, and inserting, in the minute book and register, only Hamilton against Hamilton, without mentioning of Stanfield; whereupon he craved witnesses to be examined ex officio.

It was alleged for the defender, That the said ticket, being in his possession, and made to him for so considerable a sum of money, could not be taken away but scripto vel juramento; and that presumptions could not prove payment, or take away his bond, he being willing to depone and give his oath.

The Lords, notwithstanding, ordained witnesses to be examined, ex officio, upon the presumptions and grounds alleged on; which they found to be as strong as in other cases, where the like was done before.

Page 163.