Scottish Court of Session Decisions

The pursuer John Black advanced in May, 1820, the sum of £50 upon a bill, payable at two months, accepted jointly by Andrew Black, now in the West Indies, the defender Robert Black, and the Rev. John Black, now deceased. In October, 1836, John Black raised action against Andrew and Robert Black, and against Janet Black, as, alongst with Robert Black, representing the other acceptor, setting forth that the pursuer was applied to by the parties above-mentioned, or by one or other of them, for their joint behoof, to advance to them in loan the sum of £50, and which he agreed to do on receiving their joint bill for the same; that accordingly, on 6th May, 1829, he did advance to them in loan, as aforesaid, the said sum, &c. and concluding for payment by the defenders, conjunctly and severally, of the sum of £50, due as aforesaid, with interest.

Appearance was made for Robert and Janet Black, who, denying their liability, pleaded in defence (1) that the summons being laid upon an allegation of a loan, such allegation could be proved only by writ or oath of party; and (2) that the bill being prescribed, the constitution and subsistence of the debt was proveable only by writ or oath of party.

Thereafter, on a reference being made to his oath, the defender Robert Black deponed, “That the signature ‘Robert Black,’ as an acceptor of the said bill, is the signature of the deponent. Depones, That the deponent signed the said bill as an acceptor, and, in order to become security for the sum of £50 sterling, therein contained, on account of his son, the acceptor, Andrew Black, who was then about to commence business as a baker at Newhouses, near Edinburgh. Depones, That the said sum of £50 sterling was advanced by the pursuer to the deponent's son Andrew. Depones, That he rather thinks that the words, ‘£50 sterling,’ at the top of the bill, are in the handwriting of the deponent, although he is not quite sure. Depones, That the sum in the said bill was advanced by the pursuer to the said Andrew Black on condition that the deponent and his brother, the deceased John Black, the other acceptor, should become sureties for the same, and grant the said bill: That, when the deponent signed the said bill, he was a farmer at Bridgend, and he resided there until the 9th of July, 1833: That the deponent was unsuccessful as a farmer, and his stock and cropping were sequestrated at the instance of his landlord. Depones, That the deponent did not pay to the pursuer the sum advanced by him, and for which the said bill was granted: That the deponent's son, Andrew Black, one of the acceptors, left this country in November, 1834, and he has since that time been resident abroad: That the deponent's brother, John Black, the other acceptor, now deceased, is represented by the deponent, and his sister, Mrs Janet Black or Bell. Interrogated by the commissioner, at the suggestion of the defender's agent, Whether he considers the said debt or bill is restingowing? depones, That he does not consider the said bill to be restingowing, but, on the contrary, considers it to have been paid: That, either in the end of August or beginning of September, 1834, the deponent's brother, John Black, one of the acceptors, sent to the deponent, to meet him at the house No. 3, Prince's Street, Edinburgh: That the deponent went to the said house, where he saw his brother John: That the deponent's brother, John, on that occasion, stated to the deponent, that he had paid the bill to the pursuer, at Shotts, the week before, and that the pursuer had promised to send the bill to him at Shotts, as soon as he the pursuer should return to Dundee, and the deponent's brother, John, on that occasion, complained to the deponent that it was hard for him to pay the piper, when he was not more nearly related to the deponent's son Andrew than the pursuer, who is also the uncle of Andrew. Depones, that no demand was made against the deponent for payment of the said bill until it was lodged in the hands of Messrs Wallace and Watkins, writers in Glasgow, after public notice had been given to the creditors of his deceased brother John to lodge their claims of debt against his brother's estate in the hands of these gentlemen. Re-interrogated for the pursuer, depones, That the deponent had no particular object in meeting with his brother John on that occasion, nor does he know whether his brother John had any particular object, except to mention that he had paid the bill; and he adds, that his brother was in the habit of sending for him when he came to Edinburgh. Depones, That the deponent was not present with his brother John and the pursuer on the occasion when the said bill was said to have been paid. Depones, That he has no other reasons than those already deponed to for saying that he considers the bill to have been paid. Depones, That, on the occasion when his brother John sent for him to the house in Prince's Street, as already deponed to, his brother John asked him to pay a part of the sum in the bill, but without specifying any particular sum, and the deponent then told his brother John that he could not do so at the time: That the deponent did not afterwards pay any part thereof to his brother John, Interrogated specially, and desired to say, Whether he ever, on any occasion, made enquiry to satisfy himself of the truth of the statement made by his brother John as to the alleged payment of the bill, or that the bill had been sent by the pursuer to his brother John? depones, That he did not, but he had no doubt that the bill was paid, and he has not seen the pursuer since that time until the present examination.”

The Lord Ordinary pronounced the following interlocutor, with the subjoined note: ^*—“In respect of the decision of the whole Court, in the case of Christie against Henderson and Murdoch, 19th June, 1833 (XI. Shaw, 744), Finds that the said oath proves the debt pursued for to be resting-owing by the said defender, as a joint acceptor of the bill mentioned in the libel; and decerns against the said defender in terms of the libel accordingly: Finds him liable in expenses, subject to modification.”

Robert Black reclaimed, and contended that there was a material distinction between the present case and the case of Christie, in so far as here the summons stated that the parties had applied to have the money advanced to them in loan, for their joint behoof, which was done, and then it concluded accordingly; but the oath had not made out the ground of debt as thus set forth; ¹ besides, there was nothing in the present case to impeach the accuracy of the party's statement in his oath, as in Chris-

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^* “The case of Christie is binding, of course, on the Lord Ordinary; but it was decided by a very narrow majority; and one eminent Judge (Lord Glenlee) appears to have given no opinion.

“There is a shade of difference, too, between that case and the present; inasmuch as the defenders there swore only to their general belief or opinion, that the bill must have been paid by the other acceptors; whereas Robert Black depones here, and with circumstances of time and place, that he was distinctly informed by one of the co-acceptors, since dead, that he had actually paid it to the present pursuer. As the law of Scotland admits the statement of dead persons, having cause of knowledge, to be received on the testimony of living witnesses, it, at one time, occurred to the Lord Ordinary that this sort of derivative evidence might be taken as an intrinsic part of an oath on reference, so as to make the whole deposition negative of resting-owing. But, considering that such secondary evidence is never admitted in oar law, as, of itself conclusive, and, where admissible, is necessarily submitted to the judgment and discretion of the Court, or Jury, as to its credit and effect, while an oath on reference is liable to no such estimation, but must always be taken as absolutely and finally probative of whatever it contains, he has come to be satisfied that this view was erroneous. Besides, the statement of dead persons being receivable only as a secondary testimony of witnesses, the fact said to have been stated by the deceased John Black, viz., the payment of a sum of money, could not have been proved by witnesses at all. No doubt, if he bad been alive, and sued with the other defenders, and had sworn, on the pursuer's reference, that he had himself actually paid the whole contents of the bill, that oath would have liberated not only himself but all the co acceptors. But there is no such oath; and in that of the present defender this statement must be considered as extrinsic.

“It is plain enough that neither Janet Black nor Robert could be liable as representing John, for whom they were entitled to enter the plea of prescription, and against which the pursuer does not pretend that he has either writ or oath to oppose—and it is partly upon this account, as well as the hardship and moral doubtfulness of the case, that the expenses as to Robert have been made subject to modification.”

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¹ Jackson v. Williamson, December 9, 1825 (ante, IV., 292 new ed. 296)— Ewing's Trustees v. Farquharson, February 25, 1829 (ante, VII., 464)— Still's Trustees v. Chivas, November 12, 1829 (ante, VIII., 9.)

tie's case; and he, moreover, assigns the facts and reasons why he considers the bill to have been paid.

It was answered for John Black, that there was nothing in the present case to take it out of the rule of that of Christie, which was now settled law.