Of facts inferring knowledge of, and consent to the right challenged. Effect of consent where the right is not known. Effect of legal steps passing of course. Effect of minority. Effect of payment.
Benjamin Allan v. Hamilton of Little Earnock
Date: 20 July 1715 Case No. No 37.
The procurator for a minor granted a discharge to which the minor himself subscribed as witness. Found that the minor did not thereby consent to the discharge.
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Benjamin Allan having right by progress to 500 merks, as a part of 1000 merks contained in a bond granted by the deceased Little Earnock to Alexander Orr, and his tutors and curators, in his name and for his behoof, pursues the present Little Earnock upon the passive titles; who at calling produced a discharge granted by James Henderson step-father to Orr, granting the receipt of 500 merks, with L. 20 as a year's annualrent in part payment of a greater sum borrowed by Little Earnock from him, conform to the bond, and discharges him pro tanto, to which discharge Orr is a subscribing witness. And this discharge the defender alleged did cut off the said bond, (the other halt thereof having been paid to William Douglas vintner, who had right thereto by progress). And that
Because, 1mo, The bond bearing the money to have been received from the relict (Orr's mother) and her second husband Henderson, in name of her son, and being payable to him, his heirs, &c. and his tutors and curators in his name; the payment was lawfully made to Henderson as tutor or pro-tutor to him, because bona fide payment is still by law sustained to dissolve an obligation, and here was fides uberrima, for the money was borrowed from Orr's mother and her husband, for her son's behoof while he was minor, and while she and her husband acted for him as curators; 2do, Because Orr by signing witness to the discharge did homologate the same; for certainly, where a witness is principally concerned in the subject matter of a writ, his knowledge of its contents is presumed; as was found in June 1663, Stewart contra Stewart, No 51. p. 5674, where the Lords found, “That an apparent heir's witnessing to a writ on death-bed, was equivalent to a consent, in regard he was in law presumed to have known, or ought to have known the nature of the right, because of his obvious concern in the subject matter; which the Lords found made a great difference betwixt him subscribing as witness, and a stranger not interested.” As also in anno 1710. in the case betwixt Home of Whitefield and the Laird of Castlestewart,* the Lords found, “That the Viscount of Kenmure's subscription as witness to Castlestewart's fitted accompt with his father, did so homologate the said accompt that the Viscount could not afterwards impugn the same, but that it stood probative against him, because of his subscribing witness thereto, and obvious concern in the subject matter.
Replied for the pursuer; 1mo, That by comparing the conception of the bond itself with the discharge, it clearly appears that they do not meet; because James Henderson is neither the person to whom the bond is made payable, neither is he tutor or curator to Orr; and though he were, yet the minor must discharge, and the curator only consents. 2do, Nor will the signing witness help the matter, since witnesses may sign papers without knowing the contents, nor are they guilty of any fault in so doing. And that consent is not inferred by one's signing witness to a writ, is evident by the decisions, Veitch contra Ker and Pallat, No 28. p. 5646.; Gordon contra Menzies, No 26. p. 5646.
The Lords repelled the defences, unless the defender would allege, that the money was applied to the minor's behoof.
Act. Ja. Hamilton Olivestop.Alt. Sir James Nasmith.Clerk, Gibson.
Fol. Dic. v. 1. p. 378. Bruce, v. 1. No 122. p. 158.
