Where resting owing is referred, are payment, or satisfaction, or payment to a third party, at the pursuer's desire, intrinsic?
Robert Hay v. Robert Fulton
Date: 21 June 1786 Case No. No 27.
In what cases payment to a third party, at the desire of the creditor, is held to be an intrinsic quality?
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Robert Fulton was examined, on a reference to oath, with regard to a debt of L. 11 : 14 : 8 sued for by Robert Hay.
He deponed, “That the debt was not resting owing by him: That the pursuer was owing to William Lymeburner the exact sum of L. 11 : 14 : 8; and, so far as he the deponent remembers, he gave the deponent a verbal order to pay the said sum to William Lymeburner; and which sum the deponent accordingly paid.”
The question therefore being, Whether those circumstances of payment, which were all of them positively denied by the pursuer, could be considered as intrinsic, the defender
Pleaded; It cannot adroit of doubt, that payment, which is the natural mode-of dissolving a claim of debt, must be an intrinsic quality in an oath emitted with regard to it. Neither can it make any difference, whether such payment was made to the creditor himself, or by his order, to another. So accordingly it has been often decided, 6th July 1711, Clerk contra Dallas, No 21. p. 13213.; 14th January 1737, Moffat contra Moffat, No 22. p. 13214.; — March 1759, Bett contra Hardie, No 25. p. 13217.
Answered; The defender's argument might have been of some weight, if the person authorised to receive the money had been employed, as in the cases above, alluded to, for the purpose merely of delivering it to the creditor. But, where the object of the alleged mandate was to extinguish a debt due by the creditor to a third party, a general oath of payment is by no means sufficient. It is farther requisite to prove, by the receipt or discharge of him who is said to have received the money, that the mandate has been truly fulfilled; otherwise the mandant, instead of being released from his obligation, might afterwards be obliged to pay a second time. In that manner, too, though a defender is not allowed, on a reference to oath, to rear up claims of compensation in his own favour, he might do so in favour of another, and thereby, indirectly, deprive his creditor of what is owing to him.
The Lord Ordinary found, “That the defender has not brought sufficient evidence of his having paid the sum of L. 11 : 14 : 8 to Lymeburner, in consequence of the pursuer's order, so as to support the assertion of such payment set forth in his bath.”
And, after advising a reclaiming petition for the defender, with answers for the pursuer,
The Lords adhered to the judgment of the Lord Ordinary.
Lord Ordinary, Elliock.Act. Cullen.Alt. M'Cormick.Clerk, Sinclair.
Fol. Dic. v. 4. p. 204. Fac. Col. No 274. p. 422.
