Where resting owing is referred, are payment, or satisfaction, or payment to a third party, at the pursuer's desire, intrinsic?
Agnew v. Macrae
Date: 20 February 1782 Case No. No 26.
What qualities are intrinsic, where a creditor by bills falling under the sexennial prescription, refers resting owing to the debtor's oath
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In a process for payment of sundry bills after the lapse of the sexennial prescription, the pursuer having referred resting owing to the defender's oath, he deponed, “That the bills had been accepted by him, and never paid; but that he had never received any value for them but had given them by mistake, instead of receipts, for money advanced to him, on account of a son of the drawer, to whom. upon the drawer's verbal engagement to repay, the deponent had remitted goods to America.” On this oath the pursuer
Pleaded; Every quality in an oath importing payment of a written document of debt, without producing any evidence by writ of such payment is held to be extrinsic; Erskine, b. 4. tit. 2. § 13.; 21st November 1671, Allan contra Young, infra, h. t.; 24th December 1679, Home contra Taylor, infra, h. t.; Blair contra Balfour, No 24. p. 13217.; 11th February 1761, Mitchell contra Macilney, infra, h. t.
Answered; The statute 12th Geo. III, c. 72. enacts, “That no bills shall be of force, or effectual to produce any action, unless such action be raised before the expiration of six years.” It farther provides, “That it shall and may be lawful and competent, at any time after the expiration of the said six years, to prove the debts contained in the said bills, and that the same ate resting owing, by the oaths or writs of the debtor.” By this act the bills founded on are no longer documents of debt. Parties are in the same situation as if no bills had been granted. Now, were this pursuer insisting for money as advanced by him, it would be undoubtedly relevant for the defender to swear, that he was never debtor to him, all his advances to the deponent having been made in implement of a prior obligation. The authorities and decisions quoted apply to cases, either where the written obligation subsisted in full force, or where the allegation of payment was founded on circumstances entirely foreign to the obligation sued on, and so resolved into a plea of compensation, which cannot be established by the oath of the party using it.
The Lord Ordinary found, “That the oath in this case did not prove resting owing;” and to this judgment the Lords adhered, upon advising a reclaiming petition with answers.
Lord Ordinary, Gardenston.Act. M'Cormick.Alt. Cullen.Clerk, Orme.
Fol. Dic. v. 4. p. 204. Fac. Col. No 36. p. 57.
