Scottish Court of Session Decisions

Subject_1 TUTOR - CURATOR - PUPIL.

James Forrester, Son to the deceased William Forrester, Writer to the Signet, and His Tutor,
v.
Robert Forrester, late Bailie in Edinburgh

Date: 13 January 1711
Case No. No. 252.

What kind of voucher of payment will defend the debtoragainst the subsequent suit of the minor?

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In the action at the instance of James Forrester and his tutor against Robert Forrester, for payment of £.73 owing by him per ticket to the deceased William Forrester, James' father, the pursuer offered to prove, by the defender's oath, that the ticket was in William Forrester's hands at his death, which the defender unwarrantably got up and retired. The defender having deponed, that he paid the money to one of the pursuer's tutors in presence of and with consent of the rest, who thereupon delivered up his ticket, the pursuer alleged, That it were dangerous to sustain a debtor's oath, that he retired his bond from his creditor's tutors, upon payment made to them, as a sufficient exoneration of the debtor, law having fixed a rule, that the debtors of minors shall pay to their tutors only upon getting a discharge, which is necessary, not only to exonerate the debtor, but also to constitute a charge against the tutors for what they uplift.

Answered for the defender: That he having ratired his ticket, is free by the brocard, instrumenium penes debitorem repertum præsumitur solutum, although it were never so clearly made out that the debt was once resting; and the pursuer having no other mean of probation but the defender's oath, it doth sufficiently prove the payment.

The Lords found, That the ticket being in the defender's hand, the oath proves, that the sum contained in the ticket was paid to one of the pursuer's tutors in presence of and with consent of the rest, and the ticket retired; and therefore found the defender not liable, and assoilzied.

Forbes, p. 475.