The Trustee for the Creditors of Robert Rae, v. Alexander Gordon
Date: 21 June 1794 Case No. No 5.
Consignation in the hands of a clerk of court may be proved by witnesses.
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In an action at the instance of the Trustee for the Creditors of Robert Rae, before the Stewart of Kirkcudbright, against John Milligan, he was ordered to consign L. 46 : 14 : 3 in the hands of the clerk of court.
It being afterwards disputed, how far this order had been obeyed, Milligan contended, That he had consigned L. 41 with the depute stewart-clerk, but had retained the rest on account of a debt due to him by Robert Rae.
The depute stewart-clerk had by this time died bankrupt, but the principal stewart-clerk was made a party to the action, and Milligan offered to prove by witnesses, that the consignation had taken place. A proof before answer was accordingly allowed, from which the Stewart, satisfied that Milligan's averment was true, found him liable only for the balance which he had retained in his own possession
The Trustee then brought an action against the principal Stewart-Clerk, for recovery of the money consigned with his depute, and the Stewart having found him liable, he presented a bill of advocation, which, having been refused by the Lord Ordinary, he, in a reclaiming petition,
Pleaded; 1st, Consignation is a judicial act which can be proved only by the records of court. Dic. voce Proof, p. 211.
2dly, At any rate, in this case, as relating to a payment of money, parole proof was incompetent, in so far as the sum claimed exceeded L. 100 Scots.
Answered; 1st, The order to consign is a judicial act, but the consignation itself is a private transaction between the party who makes it and the clerk of court.
Parole evidence is in many cases rejected, because in them writing is commonly adhibited, and because it was in the power of the party to obtain written evidence. But when money is consigned, no receipt is ever given by the clerk. It is, indeed, generally marked in the diet-book, or on one of the steps of process. The custody of both is, however, entrusted to the clerk of court, who therefore must be answerable for the omission. If he should lose any material paper of a process, it would be competent to prove, by parole evidence, that it had been lodged, and for the same reason, the proof taken in this case, was competent.
Consignation is, in fact, the depositation of a certain subject for certain purposes; and, it is a settled point, that depositation, whatever be the nature of the subject deposited, may be proved prout de jure; Dict. p. 226.
2dly, The object of this action is not to establish a payment of money, but a claim of damages on account of malversation in office.
The Court, upon advising the petition, with answers, were clear that the Stewart's interlocutor was right, both on the competency of the proof, and merits of the question, and therefore unanimously ‘adhered.’
Lord Ordinary, Dreghorn.Act. Da. Williamson.Alt. Alex. Fergusson.Clerk, Sinclair.
Fac. Col. No 126. p. 283.
