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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Galbraith v. Cuthbertson [1866] ScotLR 1_110_2 (18 January 1866) URL: http://www.bailii.org/scot/cases/ScotCS/1866/01SLR0110_2.html Cite as: [1866] SLR 1_110_2, [1866] ScotLR 1_110_2 |
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Page: 110↓
Qualification of an oath which held intrinsic.
In an action of count, reckoning, and payment at the instance of Mrs Barbara Cuthbertson or Galbraith, spouse of Robert Galbraith, tinsmith in Glasgow, with concurrence of her husband, against her brother James Cuthbertson, formerly farmer in Toponthank, now in Kilmaurs, as executor of his deceased brother George, the defender claimed a sum of £180, which he said was due by the male pursuer to the estate. A reference having been made in regard to this sum to the pursuer's oath, he admitted that he borrowed £180 from the deceased George Cuthbertson, for which he gave him his I O U, but he added—“Within three weeks, to the best of my recollection, after I had borrowed the £180 I went up to the bazaar market in Glasgow, and held out £180 to him, saying, ‘Here is your money,’ and asked him to give up the I O U. He said he did not want it, and ‘I make you a compliment of it.’ I asked him what was to come of the I O U. He said he would either destroy it or bring it to me, and he never asked the money from me after that.” The pursuer further deponed—“I never saw the I O U since I granted it.” The I O U was not produced, and was not now to be found.
The Lord Ordinary (Kinloch) found that the qualification contained in the deposition of the pursuer, that the deceased had made a gift of the money to the pursuer was intrinsic, and that the deposition was therefore negative of the reference.
The defender reclaimed, and contended that the qualification was extrinsic. He cited Gordon, 3d January 1764 (M. 13,234), and Thomson v. Duncan,
Page: 111↓
10th July 1855 ( 17 D. 1081). The following authorities were cited on the other side:—More's Notes, p. 418; Dickson on Evidence, p. 970; Brown v. Mitchell (M. 13,202); Walker v. Clerk (M. 13,230); Grant (M. 13,221); Forrester (M. 13,215); Law v. Johnston, 9th December 1843 ( 6 D. 201); Hamilton ( 21 D. 51). The Court adhered to the Lord Ordinary's interlocutor.
The Lord President said—In regard to this claim of £181 no proof has been led and no documentary evidence has been produced by the defender. But he has referred to the oath of the pursuer, “the averments of the defender touching” the said debt. The reference made is in regard to the lending of the money, and of the loan being due at the date of the deceased's death. The question is not whether the qualification of the pursuer's oath is credible, but whether, assuming it to be true, we are entitled to listen to it. That rests upon the doctrine of intrinsic and extrinsic qualities of an oath. This doctrine arose in a great many cases formerly, but it now seems to be very much narrowed to this: All questions having reference to the discharge or settlement of a claim are intrinsic. On the other hand, counter claims of compensation requiring constitution are extrinsic. The question is whether this case belongs to the one class or the other. All the evidence we have on the matter is to be found in the pursuer's oath. I look upon it as the history of the transaction. There can be no doubt that if his disposition had been that he had repaid the money, there would have been an end of the question. If he had got back the I O U and produced it that would have been an end of the question also. If, again, the I O U had been found in the repositories of the deceased there probably would have been no reference to oath. But suppose he had said, I got back the I O U, and did not preserve it, it is difficult to say that that would be extrinsic, What is here said is that he asked back the I O U, and that the deceased said he would destroy it or bring it to him. Is that not a part of the transaction and a termination of the whole matter? It is a mode of discharging the debt, and, when I consider the relation of the parties and the whole transaction, it seems to me a not unnatural one.
Counsel for Pursuer— Mr G. H. Pattison and Mr A. C. Lawrie. Agent— Mr Thomas Ranken, S.S.C.
Counsel for Defender— Mr Gordon and Mr Lorimer. Agents— Messrs Wotherspoon & Mack, S.S.C.