Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.

Sir James Ramsay of Whithill,
v.
Jo Robertsone.

1673. February.

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In February 1673, the following case fell to be debated and decided, remarkable for its singularity and rarity. Jo. Ramsay having been debtor to the Laird of Airdrie Preston, in 900 merks, he paid the same, and obtains his discharge. Both parties deceasing, one Jo. Robertsone in Craill confirms himself executor-creditor to Airdrie, who was his debtor in the like sum, and presses Sir Ja. Ramsay of Whythill, as heir to his brother Jo., to pay the said sum to him; who (his brother's papers being then in Holland, and knowing nothing it was paid and discharged already,) accordingly pays it, and takes an assignation thereto: so that the double payment is instructed by writ. At last Sir Ja. discovering his error, did intent an action for condiction and repetition of the said money, both against Robertsone and his cautioner in the testament, and against the representatives of Airdrie, as indebite solutum by him.

It was alleged for Robertsone, he could never be liable to refund that money, because condictio indebiti was only allowed against him who had got payment where nothing was due to him; but so it is, he was a true and lawful creditor, et qui suum tantum recepit; and whoever paid him, non refert, seeing he is not in lucro captando: and it is certain, that a creditor getting payment even from him who was not his debtor non tenetur hac condictione indebiti.

Answered,—It is confessed, that a creditor getting payment from that same person who formerly had paid him that same very sum non tenetur to restore it, because it is the payer's fault to forget what he had formerly done, and so ensnare the creditor; as also, for the same reason, a creditor will not be liable if he follow the faith of the payer, and become creditor of new to that person to whom the payment is first made in contemplation of that right which was promised by him who paid it: but here Sir Ja., the second payer, was in no fault, but in invincible ignorance; and it is against reason and the principles of law, bona fides non patitur ut bis idem exigatur, that he should not have repayment of his own. L. 57 D. de R. juris, l. 54 et 120 D. eodem; l. 59, 62, et 153 D. de Regulis Juris. Quod ipsis qui contraxerunt obstat, et successoribus eorum obstabit. Nemo melioris conditionis esse debet quam author. 2do, The payment was made to Robertsone mainly as executor-creditor, and which is a successorial and representative title; and so being hæres quoad that particular, he can have no other right to retain it than what the defunct had, (this being the definition of hæreditas, that it is successio in universum jus quod habuit defunctus tempore mortis; neither can it be otherwise transmitted than it was in the defunct's person;) but here the defunct had no title at all, his right being utterly extinguished by payment.

Replied—That double payment made by one and the self same man nulla causa parit condictionem; and if Robertsone had obtained a sentence against Sir Ja. he could never have been now questioned; and he would have got a sentence, had not he voluntarily paid him; and in effect what was paid was given by way of transaction, which stops all condiction, L. 65, par. 1mo, D. de condictione indebiti.

Duplied,—That the law is better grounded upon natural equity than to deny condiction to any who by omission hath paid one sum twice. 2do, Even where a sum is paid in obedience to a sentence, if he be the heir of the first payer it cannot prejudge him of repetition, nor alter the nature of the thing, to make it de indebito debitum; but, on the contrary, the payer should rather have condiction, because his second payment was forced and not voluntary. And that a sentence hinders not condictio indebiti, was decided in the case Pitfoddells contra Waterton and other creditors of Jo. Donaldsone; which see beside me, at the 12th of January 1664, in my register of decreets, it is No. 68. But, whatever the Lords found there, it is contrary to the common law, which hath veneration for a sentence. That habetur pro veritate, and at least cannot be refused the force of a natural obligation, which where it exists impedit hanc cmdictionem; and having a power of coaction, cannot but make the thing due: L. 1 C. de condietime indebiti; l.6, p. ult. D. de re judicata; l. 8 C. de rebus creditis; l. 108 D. de v. significatione. (Vide infra, No. 422, [Pallat, Stewart, &c. November 1673;] and 608, § 4, [November 1676;] and in June 1677, No. 585.

But we need, not jangle any more about this, seeing there is an express text that voids our controversy, viz. L. 19, p. 1, joined cum I. 65, par. ult. D. d. t. de C.I. where repetition is competent, albeit the receiver got nothing but what was owing him, if so be it was paid to him upon mistake by one who was not owing it; only there is distinction made by the doctors whether the payer pays it in his own name, thinking himself debtor in it, or in name of another, to wit, of the true debtor; and in the first case allow condiction, and in the last not, ob l. 44 D. hoc t. de C. I. See the DD. upon Condictio indebiti; as also Harprecht, ad p. 1. Institut. quibus tnodis re contrahitur obligatio. Vide l. 53 D. de R. juris.

But whatever be in this, the Lords found the pursuer's action just and well founded in law; and therefore decerned the defender Robertsone, though executor-creditor, condietime indebiti, to refund what he had so got.

I believe it would also carry all the intermediate annualrents.

Advocates' MS. No. 385, folio 165.