Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat this week in the Outer-House, and so the observe are fewer.
Robert Rutherford v. Sir Robert Douglas of Airdit
Date: 25 February 1701
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I Reported Robert Rutherford against Sir Robert Douglas of Airdit, now of Gleanbervy, and the Children of Duncan Ronald, writer. Sir Robert, at Whitsunday 1699, left, in the hands of the said Duncan, his agent, £130 sterling, to be paid to one Ogilvy, on his clearing some right; but that not being so quickly done, it is resolved that Duncan shall lend out the money, but so as it may be easily raised; for which end he gives it in to Robert Rutherford, cashier for Provost Home and the other commissaries to the army, and takes a ticket payable to himself; but the commissaries having met some time after, they, by an act of sederunt, subscribed with their hands, declared there was £150 sterling borrowed at Lammas 1699 from Sir Robert Douglas, for which they were to give him bond, with annualrent from the said term of Lammas. In the mean time, Duncan Ronald dies, and his son finding the ticket amongst his father's papers, he claims the sum. Sir Robert Douglas founding on the act of sederunt, Robert Rutherford suspends on double poinding: wherein Mr Ronald craved to be preferred, in respect of the clear liquid obligement given to their father for repayment of the said £150 sterling. Sir Robert Douglas urged that the money contained in that ticket was his; which he endeavoured to evince from thir probabilities and presumptions:—That he offered to prove, by the oath of Duncan Ronald's relict, his servants, and apprentices, that he depositated in his hands £150 sterling; and that, when he lent it to the commissaries of the army, he declared it was Sir Robert's money; and that the deceased Hugh Blair, then cash-keeper to the commissaries, has expressly set it down in his book, that it was Sir Robert's money; which fortifies the declaration contained in their act of sederunt.
Answered,—They opponed the ticket payable to Duncan Ronald and his heirs; and if he was but a trustee for Sir Robert, that now, by the late Act of Parliament 1696, can only be proven scripto vel juramento of the party intrusted; who being now dead, there remained no imaginable way to clear it but a declaration under Duncan Ronald's hand; which they did not pretend to have.
Replied,—That Act of Parliament did not concern this case, but was only intended where one did not think fit to insert their own name in a writ, but borrowed the name of another; and what if I trust a servant to pay or uplift a sum, must I have writ from him to instruct it was my money?
The Lords demurred if the Act of Parliament did extend to this case, and thought it not safe, by distinctions, to diminish the security of that new law. Yet, to have the matter fully before them, they allowed Sir Robert, before answer, to prove the facts condescended on by him, and gave him a diligence for recovery of Hugh Blair's books; and this in regard it was very presumable to be the same individual sum Sir Robert left with Mr Ronald. Yet some thought there might be two different sums; for there is here both diversitas personarum et diversœ obligationum fornire et stipulationes, though eadem summa. See Menochius de Arbitrarüs Judicum Quœst. lib. 2, cent. 3, cass. 213; and Mascardus de Probationibus.
