A person who has received payment of what is due to him, is not bound to refund, altho received from another person than the proper debtor. But an executor-creditor confirmed, having obtained payment from the debtor's heir, was obliged to refund, it having been discovered that the debt had been paid to the original creditor. Here neither was the one party creditor nor the other debtor; for, though the executor-creditor was creditor in the debt upon which his confirmation proceeded, he was not creditor in the debt in question, which was extinguished by payment before his confirmation; as to which he could be in no better case than his own debtor.
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There being a sum of 900 merks due by Mr Simon Ramsay to Sir John Prestoun, he obtained decreet against John Ramsay as heir to his father for payment, and did obtain payment, and granted a discharge; but John Ramsay having died out of the country, Sir James Ramsay who succeeded to him, did not for a long time fall upon the discharge, but after Sir John Prestoun's death, Robertson was confirmed executor-creditor to him, and did confirm this sum due by the decreet against John Ramsay, and thereupon a pursuit was raised against Sir James Ramsay; but before sentence Sir James paid the whole sum; and now having the discharge, pursues Robertson the executor-creditor for repetition; and likewise the heir of Prestoun of Airdrie for repetition of the sum, as indebite solutum; and insisted, primo loco, against Robertson; who alleged absolvitor, because indebite solutum takes only place where neither the payer was debtor, nor the receiver was creditor; but if the receiver got no more than his own, albeit it was not from the true debtor, there is no competent condictio indebiti, as is clear, l. 44. ff. de condictione indebiti, repetitio nulla est ab eo qui suum recepit, licet ab alio quam vero debitore solutum est, and l. 5. cod. de repetitione hæreditatis: And it is beyond question, that l. 2. cod. de condictione indebiti, that indebitum per errorem solutum ex delegatione repetitur adversus delegantem, sed non adversus eum, cui fit solutio; which is most consonant to our custom, whereby if a creditor get payment of his true debt against the debtor of his debtor, he is for ever secured; and albeit the payer may have repetition against his own creditor, yet never against a third party who receives no more than his own, which is a common and public interest in favours of creditors; and so if a debtor draw a precept upon any person in favours of his creditor, if that person pay, he can never recover from the creditor whom he paid, albeit by the clearest evidence he should show he paid him by error, not being really debtor, but can only repeat against him who drew the precept: Or if a creditor arrest, and obtain sentence for making furthcoming, and obtain payment, albeit thereafter it should be found that the payer was not truly debtor, yet the arrester is secure; and it must also be so in the case of an assignee, taking assignation of an anterior debt, and recovering payment thereby; much more in the case of an executor-creditor, who cannot arrest, and hath no other way to recover his debt, but by confirmation; so that Robertson, being executor-creditor, and getting payment from Ramsay of his just debt, who accepted from him an assignation, with warrandice from his own deed only, he is, not liable to repeat, as indebite solutum, but Prestoun only, to whose behoof the payment was made, and who thereupon was liberate. 2do, It is offered to be proven by the pursuer's oath, that he did not make, payment to the executor, but that Prestoun confirmed Robertson executor-creditor, that he might satisfy his debt without his knowledge; and the pursuer did transact with Prestoun, and paid to Prestoun the money, which Prestoun paid to Robertson, and got his discharge, with an assignation blank in the name by Robertson, which assignation he filled up in the name of Ramsay. 3tio, This being a transaction lite pendente, cannot be recalled upon pretence of the finding of any new instrument, which is an uncontroverted principle in law, without which no plea could be ended, and the payment made pendente processu, which hindered the decreet, must be as effectual, as if payment had been recovered upon a decreet. It was answered for the pursuer, That the defences ought to be repelled, and his pursuit is very ill founded ex condictione indebiti; for it imports not whether the party to whom he paid was creditor to another, but whether the pursuer paid to him debite or not; so if the pursuer was not debtor, it is indebite solutum; and albeit if the pursuer had paid upon a decreet in foro, he might be excluded upon any new writ as noviter veniens ad notitiam; it being in arbitrio judicis to admit or reject such writs; which though they ordinarily admit against the principal party, yet it might be more doubtful, whether they would admit it to reduce a decreet to make a creditor repeat; or if there had been a transaction diminishing a part of the right, for shunning the uncertainty of a plea; but there is neither decreet nor transaction, although pendente processu: And albeit in the case of a precept or delegation, there could be no repetition from the creditor, yet that cannot be drawn into the case of an executor-creditor, or to the case of an assigneo, who both to take right to, and found upon their author's right, and therefore must run the hazard thereof, if it be reduced, and so must repeat; but he who gets payment without taking assignation or any right, non utitur jure auctoris, sed suo, and so can never repeat, which is all that the law saith, viz. if any man pay another man's debt in name of that other, whereby he liberates him, albeit the payer was not debtor, he cannot recover it; and so in the case of delgation; but by that same title it is clear, that he who supposing himself heir, paid as heir, if he were not found to be heir, he might repeat likewise.
The Lords found that member of the defence relevant, that payment was made by the pursuer, not to the executor-creditor, but to Prestoun, or some having warrant from him, and that he paid to the executor-creditor, and got an assignation from him blank in the name, which is filled up by him or the pursuer in his name; and the pursuer having upon his oath denied the same, the Lords proceeded to determine the remaining points, and found there was here no transaction nor abatement, and that seeing the executor-creditor had gotten payment without sentence, he was liable to repeat, the pursuer always assigning to him this action against Prestoun, that he might recover payment of his first debt which he had discharged; but the Lords refused to decern annual-rent, or any thing in name of expense, seeing the double payment was not taken by that same person mala fide, but by an executor-creditor bona fide,
Fol. Dic. v. 1. p. 186. Stair, v. 2. p. 146.*** Gosford reports the same case.
Robertson being confirmed executor-creditor to Sir John Prestoun of Airdrie, and having given up a debt due by Sir James Ramsay's brother, to whom Sir James was heir, did intent action against him for payment of the debt, whereof he made payment to, and recovered a discharge from Robertson; but thereafter, finding that the debt was paid to Sir John Prestoun, who had granted a discharge thereof in his own time, he did pursue Robertson for re-payment, as being indebite solutum. It was alleged for the defender, That he ought to be assoilzied, because his name was only borrowed by James Prestoun who had caused confirm, him executor-creditor to his father; and thereafter having obtained a discharge from him, did transact with the pursuer, and did receive payment of the debt, so that he could not be liable to re-fund the money condictione indebiti, not having received the same as having a title established in his person. It was replied, That Robertson having granted the discharge upon payment, he was liable condictione indebiti to the pursuer, who paid the same; and, as to any trust or delivery of the discharge to James Prestoun, that he might receive the money, it did not concern the pursuer, but Robertson might recover the same of James Prestoun. The Lords having examined the pursuer upon oath, who declared, that he had only transacted with Robertson and paid him the money, did sustain the pursuit against him for repetition; but ordained the pursuer to assign to him his right, that he might recover the same off James Prestoun; but if his legal title of executor-creditor had been good, or if he had been a true creditor, they did not decide, albeit it be most probable, that where assignees or arresters, or comprisers recover payment upon their titles and diligence, of those who only represent the debtors, or know nothing, of the discharges of the debt until thereafter they recover the same, that in law they have condictio indebiti, which would not be allowed to the debtor himself, who had formerly paid the debt; for, in that case, they would only hare action against the creditor himself, who had received the first payment.
