Obligation of relief of a written obligation cannot be created by parole evidence.
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Reid being charged for payment of a bill of L. 7: 3: 6, accepted by him in favour of Lundy, and indorsed away by Lundy, brought a process before the Justices of Peace, against Proudfoot, founded upon the following facts:
That Proudfoot having bought linens from Lundy, Lundy refused to deliver them, unless Proudfoot should get some person to be security with him for the price: That thereafter, Proudfoot prevailed upon Reid, who was then a young country lad, not of age, and a servant to a farmer, to accept a bill for the price on a promise, that Reid should never be troubled for the money; and Proudfoot having told Lundy, that Reid was factor to a country gentleman, prevailed upon Lundy to take the bill, and got the linens from him. On these facts, Reid concluded against Proudfoot to be relieved by him of the above bill.
The Justices having allowed a proof to Reid, he proved the above facts by the oaths of Lundy and his wife, and two other witnesses. The Justices gave decree in favour of Reid.
Proudfoot suspended. In his suspension, he alleged, That he had got the linens, and that Reid had accepted the bill for the price of them; but maintained, that Reid had accepted the bill, not as security for him, but as debtor himself, to account betwixt Reid and him.
Pleaded for Proudfoot, the suspender, from the sentence of the Justices, No proof ought to have been allowed by the Justices to Reid, of the facts alleged by him; and since it hath been brought, it ought to be disregarded, because the intention of it was to create, by parole-evidence, an obligation of relief of a written obligation; whereas, such obligation of relief could only be created by oath or writ of party. This rule is general in the law of Scotland; and no suspicion or presumptions should make courts remove general land-marks.
Answered for Reid the charger, By the pursuer's own account, it appears, Reid was imposed upon, as he accepted the bill, and yet did not get the linens. This gives a right to courts to expiscate by a proof the other circumstances of fraud. The strong presumption of fraud in this case at first sight, and the certainty of it afterwards, as proved by the evidence, make a particular exception in a particular case for the detection of fraud, an equitable exception from the general rule of strict law.
“The Lords suspended the letters.”
Charger, J. Craigie.Suspender, Macqueen.
Fol. Dic. v. 4. p. 157. Fac. Col. No 142. p. 259.
