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Scottish Court of Session Decisions >>
Falconer v Blair. [1629] Mor 12487 (7 March 1629)
URL: http://www.bailii.org/scot/cases/ScotCS/1629/Mor2912487-341.html Cite as:
[1629] Mor 12487
Creditor's Oath, if sustained against Third Parties having Interest.
Falconer v. Blair
Date: 7 March 1629 Case No. No 341.
An executor paid an heritable bond, and cancelled it, without taking a discharge. Found, that the payment might be proved by the creditor's oath, and that the bond was subsisting and uncancelled.
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The relict of a defunct, who by an heritable bond was addebted to his creditor in a sum of money, being executor to her husband, and having paid the said debt, after her husband's decease, and reported the bond from the creditor, and having thereafter cancelled the same; she pursuing the heir of her husband, as he who should relieve the executor of that heritable sum for re-payment thereof to her seeing it was ratione et naturæ consentaneum, that as the executor is obliged to pay the defunct's moveable debts, off the first end of his moveables, so that the heir, out of his lands and heirship, ought to pay the defunct's heritable debt, nam quem sequuntur commoda, debent etiam sequi incommoda; this action was sustained at the executor's instance, against the heir, albeit he alleged, That she ought to have no relief, nor repetition of that payment, which she made scienter, volenter, et sponte, without any charge or compulsion used by the creditor against her; specially the bond alleged satisfied by her being now produced by her cancelled, whereupon neither the heir nor any other could be distressed by the creditor, and no discharge being produced, granted to her by the creditor; for it might be that the defunct's self had paid the debt therein contained in his own lifetime, or that the creditor had otherwise cancelled the bond, and that the relict could never have been distressed therefor; which allegeance was repelled, and the action sustained; and the Lords found the payment alleged made by the relict, after her husband's decease, might be proved by the creditor's oath, and that the bond was wholly uncancelled at that time, and after his decease might be proved by the heir's oath; which manner of probation was sustained to infer repetition to the relict, although the bond was cancelled; and the Lords declared, that they would not respect any qualification, which the defenders should adject to their depositions, anent conditions made betwixt them and the relict, at the time of the said payment, but simply would take their oaths, upon the two points foresaid, which were sustained as relevant, viz. that she herself made payment since her husband's decease, and that the bond was then uncancelled.
Act. Nicolson & Aiton.Alt. Advocatus & Nairn.Clerk, Gibson.
Fol. Dic. v. 2. p. 240. Durie, p. 434.
