Scottish Court of Session Decisions

This was an action raised by Miss Agnes Niven, Ayr, against the Provost, Magistrates, and Council of Ayr, concluding for payment of £100, being part of the sum contained in a debenture for £100 granted by the defenders in favour of the pursuer and her sisters on 1st April 1890.

The defenders averred that the amount of the debenture had been repaid by them in instalments to Matthew M'Kissock, who acted on behalf of the pursuer, and with whom the pursuer admitted that the debenture and interest warrants had been lodged. The defenders also produced and founded on five receipts endorsed on the debenture, and dated respectively, 18th March 1892, 19th September 1892, 13th April 1893, 11th November 1893, and 15th May 1895.

Page: 295↓

These receipts, with the exception of the third, all bore to be signed by Miss Niven, and to be duly tested. The third was signed by M. M'Kissock “for and on behalf of, and as authorised by the said Agnes Niven.”

The last was in the following terms—“ I, Agnes Niven, in consideration of the sum of £100 sterling now paid to me by the Provost, Magistrates, and Council of Ayr, being the balance of the contents of this debenture, and all interest due thereon, and I bind myself and my heirs, executors, and successors to warrant this discharge at all hands, and I have delivered up this mortgage to the said Provost, Magistrates, and Council.—In witness whereof, &c.

“A. Niven.”

The debenture had as a matter of fact been delivered up to the Magistrates.

With reference to these receipts, the pursuer averred that in the first two and the last two the pursuer's signiture, as well as those of the witnesses, was a forgery, and with reference to the third she averred that no authority was ever given by her to M'Kissock to uplift any part of the principal of the debenture. “No part of the principal sums contained in the said debentures has ever been paid by the defenders to the pursuer or her sisters, or to anyone authorised by them, or any of them, to receive payment thereof on her or their behalf. M'Kissock had no authority to hand the debentures to the defenders, and the pursuer was not aware until he absconded that that had been done. The said sum of £100 alleged to have been paid to M'Kissock on 13th April 1893 is the sum sued for in this action. It is due and resting-owing to the pursuer under said debenture for £400. All claims for payment of the remainder of the sums contained in the said debentures are reserved. The defenders are called upon to lodge them in process.”

The defenders pleaded, inter alia,—“3. The pursuer having granted to the defenders on 15th May 1895 a valid discharge for the £400 contained in the debenture of 1st May 1890, is bound to reduce said discharge before suing for payment of any part of the said £400.”

On 30th November 1898 the Lord Ordinary ( Stormonth Darling) repelled the third plea-in-law for the defenders, and allowed the parties a proof of their averments.

Opinion.—“The only question to be decided at this stage is that raised by the defenders' third plea-in-law, viz., Whether the pursuer is bound to reduce the so-called discharge of 15th May 1895, before suing for payment of any part of the sum of £400 contained in the debenture, No. 274. I repel that plea, because the writing in question is not a discharge. It has no discharging words. I shall therefore allow a proof.”

The defender reclaimed, and argued—The Lord Ordinary was wrong. The document of 15th May 1895 was to all intents and purposes a discharge, and therefore must be reduced before the pursuer could proceed with her action. The defenders were entitled to have the whole matter disposed of at once, and not piecemeal as the pursuer seemed to threaten.

Argued for the pursuer—If the document of 15th May were truly a valid discharge, it must be reduced. But it was no such thing. It was not a conclusive and valid discharge; it contained no formal discharging words; at the most it was a piece of evidence; and therefore reduction was unnecessary—Shand's Practice, p. 640. The question at stake here was purely one of practice.