Robertson v Thomson

JurisdictionScotland
Judgment Date19 October 1900
Date19 October 1900
Docket NumberNo. 2.
CourtCourt of Session
Court of Session
1st Division

Lord Adam, Lord M'Laren, Lord President, Lord Kinnear.

No. 2.
Robertson
and
Thomson.

Bill of Exchange—Proof—Payment—Bills of Exchange Act, 1882 (45 and 46 Vict. cap. 61), sec. 100.—

The Bills of Exchange Act, 1882, soc. 100, enacts,—‘In any judicial proceeding in Scotland, any fact relating to a bill of exchange, bank cheque, or promissory-note, which is relevant to any question of liability thereon, may be proved by parole evidence.’

Held that this section did not make parole proof of payment of a bill competent.

Payment—Proof—Parole.—

Parole proof of payment in discharge of a written obligation is incompetent, although the sum is under £100 Scots.

By bill of exchange, dated 29th December 1896, drawn by Andrew Robertson, 429 Lawnmarket, Edinburgh, and accepted by James Thomson, hairdresser, Leith Street, the latter bound himself to pay to Robertson, three months after date, the sum of £18. There was a relative agreement as to interest in the event of the bill not being retired at maturity. On 15th January 1900 Robertson raised an action in the Edinburgh Sheriff Court for payment of the balance of principal and interest then due under the bill and relative agreement. In his defences Thomson, inter alia, averred that ‘though the pursuer seldom gave the defender any vouchers, the defender undertakes to prove that the pursuer got from him a good many sums for which the pursuer has given him no credit.’

The Sheriff-substitute (Hamilton), on 30th March 1900, found this averment irrelevant, and granted decree for a sum of £20, 5s. 6d. The Sheriff (Rutherfurd), on 7th May 1900, adhered to this interlocutor.

The defender appealed to the First Division of the Court of Session, and in terms of an interlocutor of 30th June 1900, lodged a minute duly specifying the additional payments to account alleged to have been made, by their amounts and dates. The largest payment set forth in the minute was 15s., and the aggregate amount of the payments £3.

The appellant having moved for a proof of these payments, the respondent maintained that the proof should be limited to writ or oath.

Argued for the respondent;—The general rule that writ or oath is required to prove payment of an obligation constituted by writing applied, although the sum was within £100 Scots.1 Section 100 of the Bills of Exchange Act, 1882,* was not intended to relax the general law of evidence as to limitations of the mode of proof; it was only intended to affect...

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