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United Kingdom House of Lords Decisions |
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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> George Brown - Spanki - Brown v. Paterson's Trustees - Dunda - A. M'Neill [1830] UKHL 4_WS_57 (25 March 1830) URL: http://www.bailii.org/uk/cases/UKHL/1830/4_WS_57.html Cite as: [1830] UKHL 4_WS_57 |
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Page: 57↓
(1830) 4 W&S 57
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1830.
2 d Division.
No. 11.
Subject_Presumption — Payment. —
Held, (affirming the judgment of the Court of Session), that, in the circumstances of the case, two promissory-notes, although found in the possession of the debtor, were to be regarded as renewals of unretired bills, and not payments.
Subject_Process. —
An order to consign in the Royal Bank a disputed sum, sustained.
Brown being indebted to the trust-estate of the deceased Robert Paterson, made several cash payments, and accepted bills drawn on him by, or granted promissory-notes to, Mr Hay, W. S. one of the trustees, and factor for the deceased. An action of accounting having been brought, a question of fact occurred, whether two promissory-notes which were payable by Brown, in his possession, were merely renewals of other bills, or were substantive payments over and above the other bills. A remit to examine into this and other points was made to an accountant, who reported, that although there was no direct or positive evidence of the fact, the inference he drew from the whole evidence before him was, that these two promissory-notes were renewals, and therefore formed no item of credit in Brown's favour.
The Lord Ordinary approved of the report, and found Brown due to Paterson's trustees the sum of L.562. 19s. 5
½d.; but, before issuing decree for payment, ordered parties to be heard on certain claims advanced by Brown for legacies alleged to be due to him out of the deceased's estate. Both parties reclaimed; but the Court (16th January 1827) adhered, with expenses.
* Thereafter the Lord Ordinary appointed Brown to consign in the Royal Bank of Scotland the above sum, with interest on such proportion of the sum as was principal, upon a deposit receipt, payable to such person or persons as should be preferred thereto at the issue of the process. Brown reclaimed to the Court, on the ground, that as his objections had not yet been heard or disposed of, it was incompetent to order consignment; but having allowed the order to consign to become final, and only reclaiming against an interlocutor prorogating the term, the Court (23d February 1828)
_________________ Footnote _________________ * 5. Shaw and Dunlop, No. 123. p. 204.
Page: 58↓
On appeal, the discussion at the bar embraced the state of the accounting between the parties, and the import of the evidence afforded by the res gestæ of the case, the appellant strongly relying on the fact of the two promissory-notes in question having been found in his possession.
The House of Lords therefore ordered and adjudged, that the interlocutors complained of be affirmed, with L.50 costs.
Appellant's Authorities.—3. Ersk. Inst. 4, 5.; Ferguson, Nov. 29. 1793, (1488.)
Solicitors: Alexander Dobie—Solicitor.
_________________ Footnote _________________
* 6. Shaw and Dunlop, No. 215. p. 591.
