Scottish Court of Session Decisions

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

James Guthrie
v.
Henry Guthrie

Date: 11 December 1674

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James Guthrie, pursuing Henry for the price of some merchant-ware, delivered to him anno 1660, extending to a blank sum. It was alleged for the defender, that he ought to have compensation of the £800; because, by a ticket subscribed by the pursuer, he grants the receipt of the said sum from the defender; and obliged himself to deliver the same to the defender's father; and, in the meantime, to pay annualrent therefor.

It was replied, That that ticket being only an obligation ad præstandum, and to deliver to a third party a sum of money, could be no ground of compensation competent to the defender, who had no right to that sum, but only the executors of the father; likeas the defender was content to make faith, that, as he received the sum, so he did truly deliver the same to the father, conform to the ticket.

The Lords did sustain the compensation founded upon the ticket, notwith-standing of the reply; and found, That the receipt of the money being instructed scripto, and bearing an obligement to pay annualrent, was obligatory against the subscriber, unless he could produce a receipt under the father's hand, to whom it was payable. And as to the father's executors, they did not compear; and if they should compear, they could pretend no right, unless that they would instruct that the defender was debtor to the father in that sum; otherwise, if his father had granted receipt conform to the ticket, his executors would be liable to the defender for payment or redelivery thereof: The want of the receipt being the pursuer's fault, his offering to make faith that he did truly deliver the same, did not exoner him, who was obliged, by writ, to deliver, and could not be taken away but by a written receipt of the father.

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