Where resting owing is referred, are payment, or satisfaction, or payment to a third party, at the pursuer's desire, intrinsic?
Margaret Bett and her Husband v. Robert Hardie
1759.
March. Case No. No 25.
Payment to a third party at the desire of the pursuer, whether intrinsic?
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Margaret Anderson, in a testamentary settlement, conveyed, inter alia, to Margaret Bett, her daughter, a bill for L. 7. Sterling drawn by Robert Hardie upon and accented by Trent of Pitcullo, and indersed by Hardie to Anderson.
Hardie had been often entrusted by Margaret Anderson with the oustody of her writs, and care of her affairs; and, upon her death, her daughter put the said bill, with several other writs, into his (hands, and some time after married David Innes.
After the marriage, Margaret Belt, and her husband, pursued an exhibition before the Sheriff of Fife against Hardie; in which, after exhibiting certain writs he deponed, “That he knows of no other bills belonging to the defunct except a bill which was due by Pitcullo for L. 7, which the deponent uplifted, and gave to John Bett the pursuer's brother, at her desire; and she desired him to do this in July or August last, (being before her marriage,) and thinks, that John Bett got the money since the pursuer's marriage.”
The Sheriff found, “That the defender ought to prove otherwise than by his own oath, that the pursuer gave him orders to pay the contents of the bill to her brother.” Hardie's procurator thereupon caused cite the pursuer to depone on that fact; and she was accordingly examined in presence of Hardie, and deponed, “That she never in her life desired Hardie to get up the money in Pitcullo's bill, and gave it up to her brother John Bett.”
Margaret Bett and her Husband then commenced a new process before the Sheriff against Hardie, for payment of the contents of the bill. The Sheriff in respect of her oath in the exhibition, decerned against Hardie, who brought the cause into the Court of Session by suspension.
Pleaded for the suspender, The quality contained in his oath, viz. of uplifting the contents of the bill, and paying it away by the charger's orders, was intrinsic, and should have obtained his absolvitor before the Sheriff. Where a debt is constituted by oath, and the same oath declares, that the debt was paid to the creditor's order, such quality is intrinsic, as found 9th December 1664. Learmont contra Russel, No 1. p. 13201.; January 1727, Lauder contra Macgibbon, No 13. p. 13207.; and 13th January 1737, Moffat contra Moffat, No 22. p. 13214.
Answered for the charger; 1mo, The ground of debt was constituted by a writ lodged in the suspender's hands for the charger Margaret Bett's behoof and the suspender could have no right to uplift or discharge the debt without a written order from her. The suspender's exception, therefore, was only proveable by the writ or oath of the charger, and his deponing upon it consequently extrinsic; 21st December 1679, Allan contra Young, infra, h. t.; 24th December 1679, Home contra Taylor, infra, h. t.; and 23d December 1707, Brown contra Dow, infra, h. t.; 2do, The quality is extrinsic, seeing it was contained in the suspender's oath emitted in the process of exhibition, where the matter referred to him was not the constitution of the debt, or the existence of the bill as such, (as in the cases quoted for him,) but only, whether or not the bill or writ was in his custody? 2d July 1712, Forbes contra Lady Culloden, infra, h. t.; 3tio, The suspender repudiated and lost the benefit of his own oath, by his citing the charger, and her deponing negatively to his allegation; And, 4to, The charger's marriage vested the right of the bill or contents in her husband; and therefor the suspender was in mala fide thereafter to pay the same to John Bett.
Replied for the suspender, There was no need of a written order to enable the suspender to uplift the contents of the bill, and apply the money, as the bill was extinguished by delivery of it to the debtor; and consequently the existence of the debt rests upon the suspender's oath alone. Were it otherwise, clerks or servants entrusted with getting payment of bills, and applying their contents might be unjustly subjected at the pleasure of their masters. 2do, The quality was properly adjected to the oath in the exhibition, as the suspender was called upon not only to tell whether he had the bill in his custody; but, if he had is not, to declare how he bad put it away. 3tio, The suspender never referred the matter to the charger's oath; his procurator acted, in that respect, without any mandate from him; and supposing both of them had erred through simplicity and ignorance, it would be hard to let him suffer by that means; especially as he Was no gainer by paying the money to the charger's own brother, who was in want. And, lastly, Though he paid the money to him after the charger's marriage, yet he had received her orders, and uplifted the contents of the bill before the marriage, which therefore could not hinder the application.
The Court seemed to consider the quality of Hardie's oath as intrinsic, and that the citing Margaret Bett to depone at Hardie's instance, proceeded from ignorance or simplicity; and therefore was not to be held binding as a judicial reference made by him to her oath.
“The Lords sustained the reasons of suspension.”
Reporter, Woodhall.Act. Dav. Rae.Alt W. Stewart:
Fol. Dic. v. 4. p. 205. Fac. Col. No 185. p. 327.
