Scottish Court of Session Decisions

Andrew Stevenson raised action against John Stevenson, tea-dealer at Burnley, in Lancashire, and against James Stevenson, setting forth that John was indebted to the pursuer in the sum of £500, being the ascertained balance of the value of the stock in trade, book-debts, and goodwill of a tea and drapery concern at Burnley, belonging to the pursuer, and made over by him to John Stevenson about the year 1803; that the sum in question had been constituted by a promissory-note dated in July, 1810, granted by John Stevenson in favour of the pursuer; and that, under a meditatione warrant, recently obtained, John Stevenson had bound himself as principal, for due compearance in Court, in common form, and James Stevenson as cautioner. The summons concluded for payment of the £500, with interest. The pursuer, at the same time, in general terms, “referred the libel to the oath of the defender,” John Stevenson.

Two defences were pleaded, 1st, That the promissory-note was prescribed; and, 2d, “The defenders deny generally that there is any sum resting-owing by them, or either of them, to the pursuer; and they crave absolvitor, with expenses.”

The record was closed on summons and defences. John Stevenson, under the reference, admitted that he had agreed in 1803 to take part of the pursuer's stock, his book-debts, and the good-will of the business, off the pursuer's hands, at a price which he thought was £1200; “And the bill, or promissory-note for £500, dated 18th July, 1810, being exhibited to the deponent depones, That it was granted by him for the balance which he, at the time of its date, owed to the said Andrew Stevenson of the £1200. Interrogated, Whether the deponent had, by previous payments, reduced the debt to the sum contained in the promissory-note above-mentioned? depones, That he had, and that £500 was considered to be the balance due at the date of the promissory-note. The deponent here added, in correction of the preceding answer, That the balance at that time was £540; and that, after granting the foresaid bill, he was to pay the £40 at his convenience, but without any interest, but that interest was to be paid on the foresaid bill till paid; and that the foresaid sum of £40 was paid accordingly, to the best of the deponent's recollection: That the foresaid £40 was remitted to the said Andrew Stevenson by a bill, which, to the best of his knowledge, was payable two months after date. Depones, That he thinks that the bill for £40 was so remitted about the end of the year 1810, or beginning of 1811. And the deponent being specially interrogated, Whether the deponent has since paid to the pursuer the said sum of £500 contained in the said promissory-note, and interest due thereon ? depones and answers, ‘Not that I remember.’ And the deponent being farther interrogated, Whether the sum in the said promissory-note is still resting-owing ? depones, That it is not; and depones in explanation, that, in 1815, he made an assignment, according to the law of England, where he was domiciled at the time, of all his goods and effects for the benefit of all his creditors, and that the pursuer, Andrew Stevenson, was the principal assignee, and which assignation was accepted by the pursuer, and that that assignment cleared him of all his debts. In-terrogated, depones, That there was no commission of bankruptcy issued against the deponent. Interrogated, depones, That the deponent was living at Burnley at the time he made this assignment. Depones, That he communicated to the pursuer by letter the fact of his having executed the assignment, from whom he received an answer accepting of the same. Depones, That the deponent has not that letter in his possession, and does not know what has become of it, it is so long ago, and that it has probably been lost. Depones, That by accepting of the assignment, he means that the pursuer agreed to act as an assignee, and that as it was not convenient for him to come at the time, he gave authority to another to act for him: That this person was the foresaid Alexander Stevenson, who acted as the pursuer's agent throughout the whole of the business. Interrogated, depones, That the said assignment is his only reason for saying that the sum of £500, contained in the said promissory-note, and interest thereon, is not still resting-owing. Interrogated, depones, That for the reasons above stated, no part of the said note or bill for £500 is now due. Interrogated by the Commissioner, on the motion of the defender, Whether the deponent's estate and effects were sold by the trustees under the assignment, and a dividend paid to his creditors ? depones affirmative, and that dividends were paid. Interrogated, Whether Andrew Stevenson received a dividend along with the other creditors? depones, That he did, that is to say, he got it accounted to him for money that he owed. Interrogated, What was the amount of the dividend? depones, That he cannot exactly say, but that it was first calculated at about ten shillings in the pound, but that from some loss it did not amount to so much. Interrogated, What he means when he says that the deed of assignment cleared him of all his debts ? depones and answers, Because the deed expresses that as a condition. Interrogated, Was the deed of assignment signed or subscribed by Andrew Stevenson, or for him by his authority? Objected for the pursuer to this interrogatory, That it refers to matters evidently extraneous. The Commissioner repels the objection, and allows the interrogatory to be put. And the deponent answers, That the deed of assignment was signed or subscribed for him by the said Alexander Stevenson, as his agent, and by his particular authority.”

On hearing parties and considering this deposition, the Lord Ordinary pronounced the following interlocutor:—

“FindS, That the constitution of the debt libelled is proved by the said deposition: Finds it also admitted by the defender, that the debt has not been paid: and finds, That the quality adjected to the oath that the said debt was discharged, by the pursuer having, alongst with others of the defender's creditors, accepted of an assignation of all his effects, is extrinsic, inasmuch as it is founded on the supposed effect of a separate transaction, and would require to be supported by evidence of the nature and terms of the alleged assignation, of the proceedings under it, and of the legal effect of those circumstances by the law of England, in discharging the debt; but allows the defender to be further heard on the import and effect of the said assignation, and other proceedings referred to, and the mode in which he proposes to establish these.” ^*

_________________ Footnote _________________

* “ Note.—As the point of resting-owing is one which the pursuer undertakes to establish by the defender's oath, a positive and absolute statement that the pursuer had, on receiving a certain sum, directly agreed to discharge the debt, might have been admitted as an intrinsic quality of the oath. But the quality offered by the defender here is very different. It truly amounts to nothing more, even according to the most favourable construction, than the expression of the defender's opinion, that the ‘clearing of all his debts’ resulted from a separate transaction, i. e. the granting of an assignation of his effects to the pursuer;—an opinion, too, that may or may not turn out to be well founded, according to the terms of the assignation, the proceedings which followed on it, and above all, the law of the country by which its effects must be tried. The Lord Ordinary holds a statement of this kind to be clearly extrinsic, and one which the defender must establish by competent evidence. The case resembles very nearly that of Brown v. M'Intyre, ¹ 26th June, 1828, and the Lord Ordinary has followed the course there pointed out, by allowing the defenderan opportunity of being heard farther on the measures which he proposes to take, in order to establish the alleged discharge of the debt.”

¹ Ante, VI. 1022.

The pursuer reclaimed against the interlocutor, “in so far as it allowed the defender to be further heard on the import and effect of the assignation and other proceedings referred to in the deposition, and the mode in which he proposed to establish these.”

In support of his Note, the pursuer pleaded, that, if the defender had stated on the record that the bill had never been paid, but that under the assignation he was discharged of all his debts, including the bill, it would have been quite competent for him to get into a proof of that allegation now. But as that defence, though of a very special nature, was not stated or alluded to, on the record, which was closed, it was not competent now to go into a proof of it; and as it was extrinsic, so as not to be proved by the oath itself, it must be entirely disregarded. In the case of M'Intyre, referred to by the Lord Ordinary, the defence, of which a proof was allowed, had been previously stated on the record; which made an essential distinction between that case and the present.

The defender answered, that he had stated one general and comprehensive defence, that nothing was due to the pursuer; a general reference of the libel had been made to his oath. So far as the statements in the oath were intrinsic, they were proved by the oath and went to support the above defence, if available in support of it; and, so far as the statements were not intrinsic, the worst result for the defender merely was that he must prove them otherwise than by his oath. In regard to the statements in question, the defender might perhaps have reclaimed against the interlocutor, and insisted that they were intrinsic; but, at all events, he was entitled to a proof of them.