Payment and Consignation how relevant to be proved.
Charles Macdonald v. Alexander Callender
Date: 11 March 1786 Case No. No 157.
A debtor offered to prove by witnesses, that the do not pay the debt instanily on the delivery of the going the, according to what was usually done, payment a new days after. The Lords allowed the proof of payment by witness.
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Callender, a butcher in Falkirk, purchased a parcel of sheep from Macdonald, a grazier in Stirlingshire, as the latter was passing through that town on his way to the Edinburgh markets. Macdonald afterwards pursued Callender for the price; who, in defence, offered to prove by witnesses, that though he did not pay the money instantly on the delivery of the sheep, he, according to what was usually done, paid it a few days after, when the pursuer had returned from Edinburgh. To this mode of proof the pursuer objected; and
Pleaded; It might be relevant to prove by witnesses payments made unico contextu with the delivery of moveables purchased. But in the present case, an interval of time is said to have elapsed between the one and the other; which, though short, is evidently not to be distinguished in this matter from a longer period.
Now, payment of debts, even constituted without writing, unless they are below L. 100 Scots, cannot be proved by witnesses; Act of Sed. 8th June 1597; Erskine, b. 4. tit. 2. § 21. The mere delivery of moveables is a fact that can hardly be misapprehended by witnesses when it is seen; but the payment of money they cannot understand by mere observation, or without a previous knowledge of the cause from which it arises.
Answered; The supposition, that payments beyond L. 100 Scots cannot be proved by witnesses, appears not to rest on any sufficient ground. On the contrary, it seems more reasonable to admit that kind of evidence in every case, where it is not known or presumed that the parties had meant to disallow it, and where the facts or things to be enquired about, are of such a nature as to be sufficiently understood or distinguished by witnesses; a doctrine which is likewise better supported by authority; Stair, b. 4. tit. 43. § 4. The payment of money arising from any well-known or accustomed transaction, such as sale, being of that description, is provable be witnesses; 19th June 1605, No 54. p. 12301.; 16th December 1626, Finlayson contra Executors of Lauder, No 63. p. 12304.
In the present case, however, the payment of the money is to be viewed rather in the light of one of the mutual prestations of a bargain of moveables, than as made in discharge of a prior debt.
The Lord Ordinary allowed the proof of payment by witnesses.
A reclaiming petition being presented, the Court considered the payment as the counterpart of the bargain; and refused the petition without answers.
Ordinary. Lord Justice-Clerk.Act. Steuart.Alt. Dean of Faculty.Clerk, Menzies.
Fol. Dic. v. 4. p. 159. Fac. Col. No 270. p. 417.
