Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

John Woodcroft and his Factor,
v.
William, Earl of Strathnaver

Date: 15 January 1712

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In the process of furthcoming, at the instance of John Woodcroft and his factor, against the Earl of Strathnaver, as debtor to the Earl of Sutherland, his father, the pursuer's debtor:—The defender, being interrogated upon oath if he had intromitted with the rents of certain lands belonging to the Earl of Sutherland in liferent, and in what manner he had paid the same; acknowledged his intromission with these rents; but that, at the time of the arrestment, he was not debtor for the same, but had made payment to the Earl, or his order, at several times before the arrestment.

Alleged for the pursuer.—The defender ought to depone when these orders from the Earl of Sutherland were drawn, to whom payable, for what cause, and to what extent; that the Lords may judge if the same be relevant to assoilyie or not; for he is not to be judge of the relevancy of his own payment. Stair, Lib. 3. Tit. 1. § 41. And these orders might perhaps have been for payment of debts which the defender himself was bound to clear; or the date of the orders might have been before, and the payment after the arrestment, which would not be relevant to assoilyie the defender.

Answered for the defender.—Though a debtor by writ called in a furthcoming should be special, yet it sufficeth that the defender (whose intromission is probable only by his own oath,) depone, without descending to particulars, That he paid all before the arrestment; which implies naturalem præstationem: albeit extrinsic qualities, inferring a ground of compensation, or payment in goods, deponed upon, must be proved aliunde. June 26, 1675, Gilchrist contra Murray, observed by Dirltoun.

The Lords ordained the defender to depone, specially, what payments were made by him to his father, and by his order, to the best of his memory.

Page 575.