Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

Sir James Carmichael of Bonnyton
v.
Sir Robert Grierson of Lagg

Date: 20 June 1707

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Sir Robert Grierson of Lagg, being debtor to Sir James Carmichael of Bonnyton in a bond of 20,000 merks; and, being pursued, he craved allowance for 9000 merks, contained in two partial payments, by discharges granted by Andrew Bailie, writer to the signet, as factor for Bonnyton.

Alleged,—No regard to thir discharges; because Andrew Baillie's factory in 1686 empowered him to uplift only the sums contained in an inventory signed by them of the same date, and whereof Lagg's sum could not be a part; for his bond is not granted till 1688, two years after the date of said factory. And Lagg is a subscribing witness to the said factory, and likewise one of Bonnyton's tutors; and so could not be ignorant that it was only a qualified limited factory, restricted to particular sums, whereof this of Lagg's could be none. And it is very suspect, seeing one of the receipts, viz. for 6000 merks, is within two weeks of the date of the bond; and such payments by anticipation, and before the term of payment, are very extraordinary and unusual.

Answered,—Though the factory bear relation to an inventory, yet it cannot be so strictly taken as to be taxative; seeing Bonnyton reposed an exuberant trust in Andrew Baillie, to manage all his business. Likeas, Sir James Carmichael, after the said Andrew Baillie's death, has given a full, ample, and general discharge to his heirs, of all sums the said Andrew had received for him, as factor, from any persons whatsomever; which certainly must include this sum, though it do not mention the same. And though the partial payment of 6000 merks be so quickly after the bond, there is no incongruity in that; for any debtor, tender of his credit, if money come unexpectedly into his hand, will desire to relieve himself, though it was before the term of payment.

Replied,—The discharge given to the factor's heirs bears not to be after count and reckoning, but was given because no reimbursement was to be expected from them: and Bonnyton is willing to allow this payment to Lagg if he will give the least evidence or proof that it came to his behoof, or was in rem ejus versum. And if Bonnyton were pursuing Andrew Baillie's heirs for that 9000 merks, his discharge would cut him out and secure them; but if Lagg pursue them for repetition of it, their discharge will not defend against him: and therefore Lagg must be liable; reserving his recourse against Andrew Baillie's heirs, to whom he paid it without any just warrant.

The Lords considered, that bona fide payment, though to a wrong hand, is very favourable in law, and that bona fides non patilur ut idem bis exigatur. And though Baillie had no power to discharge it, yet, he having got his constituent's discharge and exoneration, it was a very dubious and problematic case: for payment to a factor has been sustained by the Lords, though the factory afterwards was improven and found false: And siclike, payment to a minister deposed was allowed for terms after his deprivation, because he continued to preach; and if there was real numeration of money made, it were hard to pay it over again. Yet, seeing the factory was so expressly limited, they resolved to hear the case farther reasoned in their own presence; but, to bring all parties in the field, they granted diligence for citing the heirs of Andrew Baillie, to see how they can defend themselves, or give any instruction that it was paid in to Bonnyton at their counting; and, if he had not given it in, it would have been extant when Andrew Baillie, so shortly after its receipt, died; and, though no waster, yet it is known he left not so much (counting his own estate at the full extent,) as 9000 merks.

Vol. II. Page 372.