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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Thomson v. Philp [1866] ScotLR 3_336_1 (25 March 1866) URL: http://www.bailii.org/scot/cases/ScotCS/1866/03SLR0336_1.html Cite as: [1866] ScotLR 3_336_1, [1866] SLR 3_336_1 |
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Page: 336↓
(1) Terms of a document which held not to be a promissory note in respect of uncertainty in the payee. (2) Held (Lord Neaves diss.) that a reference to oath which was declared negative of the reference was an implied surrender of every other form of proof, and that a party who had availed himself of it had excluded .his right to all other.
This is an advocation from the Sheriff Court of Fifeshire. John Thomson, carter, Cairneyhill, for himself, and for his own right and interest in the premises, and as executor and universal legatory of the deceased Julia Paton or Young, residing at Cairneyhill, widow of William Young, feuar there, conform to last will and testament executed by her in his favour, dated the 26th of July 1862, sued the defender upon an alleged promissory-note in the following terms:—
“£40.—Twelve months after date I promise to pay to Mrs July Paton Young, or James Thomson, carter, Carnehill, or that order, the sum of £40 sterling, with interest.
(Signed) “ Robert Philp.
“Carenhille, 20th Sept. 1862.”
There was an alternative conclusion in the summons for alleged cash advances by the said Julia Paton or Young to the defender “in different sums and at different times (the particular sum and dates being to the pursuer unknown) prior to the 20th of September 1862,” under deduction of a sum of £1 paid to account. The Sheriff-Substitute (Bell) held that the document libelled was not a promissory-note in respect it did not contain an unconditional promise to pay to a particular payee, and as to the alternative conclusion of the summons that it was defective by reason of want of specification. He therefore assoilzied the defender from the first conclusion, and dismissed the summons quoad the second. The Sheriff (Mackenzie) adhered to this interlocutor so far as it found that the document libelled on was not a promissory-note, but altered as to the alternative conclusion, and found that the pursuer's averment might be roved by the writ or oath of the defender. That oath was taken, and the Sheriff-Substitute found that it was negative of the reference. The Sheriff adhered. The pursuer advocated.
Fraser and Scott for him.
W. M. Thomson for the respondent.
At advising,
The object of the pursuer under each conclusion, as appears from the fact of alternative libelling, was to recover the alleged debt, either as proved or established by a document said to be privileged, or, if the document should not afford evidence
Page: 337↓
The Sheriff-Substitute at Dunfermline found that the document libelled under the first conclusion of the action was not a privileged instruction; and as it was improbative, being subscribed but not written by the party laid to be under the obligation, he assoilzied from that conclusion of the action and his judgment was adhered to by the Sheriff. In that state of matters the pursuer refers to the oath of the defender.
The oath being confessedly negative of the reference, the pursuer advocates the judgments in so far as they assoilzie from the first conclusion of the libel. The respondent, besides meeting the case made against the Sheriff's judgment on the first conclusion, objects that the reference excludes the challenge.
I am of opinion that the judgments of the Sheriff-Substitute and Sheriff in reference to the document sued on under the first conclusion are sound. The form of the instrument is not one known or recognised in mercantile dealing; and it is so conceived as to introduce in reference to the payee an uncertainty which is opposed to the very essence of such commercial instruments. It is made payable to one or other of two persons, not with certainty to any one. There is no definite or fired payee. Assuming a charge to be given by the two parties separately, or an action simultaneously brought by each, the difficulty of enforcing such obligations is apparent, Considering the freedom from solemnity in such instruments, and the rapidity of execution to which, when in proper form, they are entitled, it is obviously necessary, as Mr Bell has remarked, “to require the strictest conformity to such requisites as law and mercantile custom have established in regard to their constitution.” Law, as expressed by all the leading authorities upon the subject, condemns such instruments, and in mercantile dealing no such form is to be met with.
I have no hesitation, therefore, in adhering to the judgment advocated in reference to the disposal the first conclusion of the libel which disposes of the case; but I confess that I should have been prepared to have sustained the respondent's objection founded upon the reference to oath had it been necessary. Viewing the subject-matter of the inquiry under the second conclusion, as going to the subsistence of the very same debt sued for under the first, I should hold that the oath which is, or ought to be, an end of strife, should terminate the dispute. If the debt under the second conclusion cannot be regarded as any other debt than that sued for under the first, surely the subject-matter of the reference under the alternative conclusion must dispose of the conclusion to which it was made. For the implied condition of a reference is the abandonment of every other description of proof by which the fact referred to oath may be proved. In referring to oath there is an implied surrender of any proof by bond, bill, or written instrument. To reserve written evidence of the facts deponed to in the shape of a promissory-note or bond of the granter would be to retain a power of contradicting the testimony obtained upon an implied condition, which seems to me to exclude any other appeal to proof than the definitive appeal made on the reference. (Stair iv., 4.2.) The advocator should, if he desired to obtain judgment upon his legal plea on the validity of the promissory-note, have allowed judgment to go by default against him in the inferior Court, and reserved his reference until after the Court had disposed of the first conclusion.
Agent for Advocator— John Galletly, S.S.C.
Agent for Respondent— George Wilson, S.S.C.