Scottish Court of Session Decisions

Subject_1 QUALIFIED OATH.
Subject_2 SECT. VI.

Compensation Extrinsic.

William Mitchell
v.
David Mackilnay

Date: 11 February 1761
Case No. No 55.

A quality in an oath inferring compensation is extrinsic.

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William Mitchell, in right of Andrew Maclure executor confirmed to Michael Maclure, brought a process against David Macilnay before the Bailie of Carrick in 1748, for payment of a bill dated December 13th 1733, accepted by Mackilnay, and payable to Michael Maclure, but not subscribed by Maclure as drawer, his name being only in the body of it, and the writing not holograph of him.

The pursuer offered to prove the acceptance of the bill by the defender's oath, and that the contents thereof were resting owing; but the defender having failed to compear, the term was circumduced, and decree went in absence against him.

Pleaded in a suspension of this decree, 1mo, That the bill was void, as not being signed by the drawer, nor holograph of him; 2do, That no part of the debt was resting owing, which the suspender was ready to depone, if the circumduction were taken off; 3tio, That the suspender himself was one of the nearest in kin of Michael Maclure, and as such entitled to a share of the bill in question as part of Michael Maclure's executry, and likewise to a share in right of Katharine Macilnay, another of the nearest in kin, conform to her assignation in his favour.

The Lord Alemore Ordinary, ‘found it relevant to be proved by the defender's oath, that he accepted the bill libelled on, payable to Michael Maclure, and that he was owing the contents to him at the time of his death. The defender accordingly emitted the following oath: ‘Depones, That the said bill is a true bill, and was really accepted by him, payable to Michael Maclure for L. 9 Sterling, the sum therein contained; That Michael Maclure, at the time of the deponent's accepting the said bill, was staying in the deponent's house in Trostoun, where he had been about a fortnight before; That the said Michael continued to live in the deponent's house for about eight years thereafter, part of which time the deponent resided in Balbeg; all of which time he lived at bed and board just as the deponent did himself; That upon Maclure's first coming to live with the deponent, there was no agreement betwixt them what he should pay for bed and board; but that about three years thereafter, Maclure and he agreed on that head, and Maclure condescended to pay him twenty shillings Sterling per quarter; That there was nobody present with them when this agreement was made; and that Maclure never paid him any money to account of his bed and board. Depones, That Maclure told him, the payment of the bill in question should never be demanded of him; and that Maclure went away from the deponent's house a visiting, and after eight days illness died about a fortnight thereafter; That the deponent saw him before he died, but was then speechless. Depones, That Michael Maclure, during his stay with the deponent, did not work to him any way as a servant; but that for two or three summers first after he came, he overlooked the deponent's herds; that is, he showed them how to put the cattle upon the grass, and to keep them out of the corns. Depones, That during the time of Maclure's staying with him, as said is, the deponent provided necessaries to him, such as stockings, shoes, shirts, and other necessaries, to the extent of about 40 shillings Sterling. Depones, That he paid a share of Michael Maclure's funeral expenses, particularly for bread to Mr Macmin in Dalmellington, for drink to William Logie in Straton, for his dead linens to John Chalmers merchant in Straton, and otherways, to the best of the deponent's remembrance, in all to betwixt L. 3 and L. 4 Sterling. Depones, That the contents of the bill above mentioned was really owing to Maclure at the time of his death; but that the same is more than overpaid by his board, and the money he paid out at his funerals, as above, and for the necessaries to him while in life, as aforesaid.’

The Lord Ordinary, upon advising this oath, ‘found the quality contained in it's extrinsic, and decerned against the defender for payment of the principal sum in the bill and interest thereof; but found, that the defender, in his own right, and as having right by assignation from another of the seven nearest in kin of the deceased Michael Maclure, was entitled to retention of two seventh parts of the said sums.’

Pleaded for the defender in a reclaiming bill; The debt in question does not depend upon the bill, which is entirely void, but stands solely upon the defender's oath, and therefore may be taken away by the same mean of proof by which it was constituted. The circumstance of resting owing was expressly referred to oath; and the deposition bears, that the contents of the bill were more than overpaid by the board, funeral expenses, and other necessaries; and that Maclure expressly promised never to demand payment of the bill. The defender therefore has deponed negative as to resting owing, and this quality is an intrinsic part of the oath. If the verity of the subscription had been the only thing referred to oath, the quality adjected might have been considered as extrinsic; but here the writing was entirely null; it was necessary therefore to prove the constitution of the debt; and where a debt is established on a person by his own oath, he ought to be allowed to relieve himself of it in the same way. These principles have been established by decisions, 11th February 1634, Cassinbro contra Irvine, No 44. p. 13233.; 14th February 1633, Rankine, voce Writ; 14th January 1737, Moffat, No 22. p. 13214.; 16th February 1669, Brown contra Mitchell, No 2. p. 13202.; 17th January 1727, Lauder contra Macgibbon and Medina, No 13. p. 13206. and sundry others observed in the Dictionary, under this title. To which may be added a late case, Bett and Innes contra Hardie 1759, No 25. p. 13217. By these decisions this general principle seems to be established, that where the debt owes its constitution to the oath of party, its subsistence must depend upon the same. Neither can it make any difference, whether the quality adjected appears to have taken its rise at the constitution of the bargain, or afterwards. The thing referred to oath is resting owing, and it is enough for the defender to swear, that the debt is not resting owing, whether the stipulation or bargain by which it was extinguished happened at the time of granting the bill, or only took its rise at an after period.

Answered for the pursuer; Where resting owing is offered to be proved by the defender's oath, every quality is held to be extrinsic, which is not immediately connected with the debt offered to be proved, or the transaction which gave rise to such debt. If the defender had deposed, that, at the time of the loan, it was a part of the agreement between him and Michael Maclure, that payment of the debt was to be made by the board wages then agreed on. this would have been an intrinsic quality; and possibly the same would have been the case, if he had expressly swore, that, at any subsequent period it had been agreed, that the board was to impute in payment of the bill; but as he has only deposed, that at the distance of three years, an agreement was made for board, without adding that the board was to be imputed in payment of the bill; this has no immediate relation to the original loan; and therefore the claim for board stands entirely upon the footing of a ground of compensation unconnected with the bill, and of consequence must be otherwise proved than by the supposed creditor's oath, where no reference is made to it. The same observation holds with respect to the other furnishings said to have been made to the defunct; and the alleged promise made by Maclure, not to demand payment of the bill, is equally extrinsic. The whole decisions appealed to by the defender, differ from the present case in this, that in every one of them, the quality was immediately connected with the ground of debt; whereas here the quality adjected by the defender resolves clearly into a claim of compensation; and it is established by a variety of decisions observed under the present title in the Dictionary, that such claim is extrinsic.

‘The Lords found the quality of the oath extrinsic; but found the defender entitled to retain the sum in the bill, until the charger or his cedent accounted to him for two seventh parts of Michael Maclure's executry; and found the defender entitled to plead compensation on such articles of furnishings as he had already instructed, or could instruct, that he had laid out on Michael Maclure's funerals.’

Act. Montgomery. Alt. W. Stewart. Clerk, Kilpatrick. Fol. Dic. v. 4. p. 206. Fac. Col. No 21. p. 38.