Scottish Court of Session Decisions

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

Andrew Bowman
v.
Ker of Littledean

Date: 24 November 1697

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Andrew Bowman pursues Ker of Littledean for a sum contained in his father's bond, granted to one Cranston, to which debt Bowman has now right.

Alleged for Littledean,—That Cranston, in farther security and payment of this sum, got an assignation to a tack-duty payable by sundry tenants to Littledean, and offered to prove his intromission by virtue of the tack and assignation prout de jure. There was no doubt but the delivery of victual was probable bv witnesses, but the receipt of money-rent was all the scruple.

Bowman Contended,—That though the delivery of money falls under the sense of witnesses, as well as that of any other species and fungible, yet quo animo, and for what intent it is given, may be altogether unknown to them; and therefore it is an uncontroverted rule in our law, that the receipt of money can only be proven scripto vel juramento; especially where it is to take away and extinguish writ; as here it is to prove payment of a bond by witnesses, which was never allowed in Scotland. See Dury, 25th November 1624, Bisset against Bisset, and the citations there referred to, especially that of Job.

Answered for Littledean,—Though, regulariter, writ can only be taken away by writ, or the party's oath, yet, in sundry circumstantiate cases, the Lords have allowed intromission with money-rent to be proven by witnesses, though it was to extinguish an infeftment of annualrent constituted by writ; as was found, 4th February 1671, Wisheart against Arthur, and 2d December 1665, Thomson against Moubray; likeas, the extinction and satisfaction of comprisings has been sustained by witnesses.

The Lords shunned the general case here; but finding that sundry receipts of Cranston's were produced, which presumed, that what he received he had given discharges for, therefore they refused to sustain his intromission with money to be proven by witnesses after so long a time, who might now forget or mistake the quantity or cause, especially against a singular successor for onerous causes.

Then Littledean's procurators alleged,—That Cranston, having entered to possess by virtue of that assignation, should have continued to intromit and uplift the whole, unless he subsume he was debarred via facti et juris, and show, at least condescend, who got the rents.

Answered,—He was not tied to diligence, being a voluntary assignee, whatever may be the case of apprisers once entering into possession.

The Lords did not decide this point, how far he was liable in diligence, at this time.

Vol. I. Page 796.