Scottish Court of Session Decisions

Andrew Robertson, accountant, Edinburgh, brought an action in the Sheriff Court at Edinburgh, against James Thomson, hairdresser there, concluding for payment of a certain sum, being the principal and interest due under a bill of exchange for £18 accepted by Thomson, subject to deduction of certain sums paid to account.

Robertson averred that on 29th December 1896 Thomson accepted a bill drawn by him for £18, and signed the following relative agreement:—“Sir,—I have this day accepted a bill drawn by you upon me for eighteen pounds——shillings sterling (£18), payable three months after date, for value received. In the event of my failing to retire said bill at maturity, I hereby agree, and bind and oblige myself to pay by way of interest on the total amount of said bill, if not met when due, or any portion thereof remaining due, and so long as it remains due, at the rate of threepence per pound for each pound, or part of a pound, per week, and to continue to pay interest at said rate until said bill is duly retired, and it shall be in your option to apply any monies paid by me after said bill becomes due, either to account of said bill or to said interest.”

A statement was lodged by the pursuer, whereby after crediting certain instalments of principal and interest, a balance of £20, 5s. 6d. was brought out as due by Thomson.

The defender averred and undertook to prove that he had made other payments besides those credited in the pursuer's account. For these alleged additional payments

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he had received no vouchers. All the sums so alleged to have been paid were less in amount than £8, 6s. 8d.

The pursuer pleaded, inter alia—“(4) The application of the payments otherwise than as credited, and the alleged payments beyond those credited, can only be proved by the pursuer's writ or oath.”

By the Bills of Exchange Act 1880, section 100, it is provided:—“In any judicial proceeding in Scotland, any fact relating to a bill of exchange, bank cheque, or promissory-note, which is relevant to any question of liability thereon, may be proved by parole evidence.”

On 30th March 1900 the Sheriff-Substitute ( Hamilton) pronounced the following interlocutor:—“Finds that the defender has failed to set forth a relevant averment of payments to account of the sum sued for beyond those credited in the prayer of the petition: Therefore repels the defences in so far as not already dealt with, and decerns against the defender for payment to the pursuer of twenty pounds, five shillings and sixpence, being the sum brought out in the statement No. 16 of process, with interest thereon at the rate of £5 per centum per annum from the date of citation till payment: Finds the pursuer entitled to expenses, modified to Two pounds, two shillings, and decerns against the defender for payment thereof to the pursuer.”

On appeal the Sheriff ( Rutherford) adhered to the interlocutor of the Sheriff—Substitute and dismissed the appeal.

The defender appealed to the Court of Session, and argued that under section 100 of the Bills of Exchange Act 1880 (quoted supra) he was entitled to a proof of his averment that he had made payments which were not credited in the account.

Argued for the respondent.—It was clear that at common law payment of a debt constituted by writ could not be proved by parole—Dickson on Evidence, sec. 610. This rule had not been altered by sec. 100 of the Bills of Exchange Act. The terms of that section had been interpreted and limited by decisions— National Bank of Australia v. Turnbull & Co., March 5, 1891, 18 R. 629; Gibson's Trustees v. Galloway, January 22, 1896, 23 R. 414.