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Thomas Jack v Fiddes. [1661] Mor 5633 (24 July 1661)
URL: http://www.bailii.org/scot/cases/ScotCS/1661/Mor1405633-019.html Cite as:
[1661] Mor 5633
Of facts inferring knowledge of, and consent to the right challenged. Effect of consent where the right is not known. Effect of legal steps passing of course. Effect of minority. Effect of payment.
Thomas Jack v. Fiddes
Date: 24 July 1661 Case No. No 19.
Homologation of an informal decree found not to have been inferred by payment of the money without a charge.
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Thomas Jack pursues ——— Fiddes, alleging, That Fiddes having given him in custody the sum of 500 merks in anno 1650, by a ticket produced, bearing, ‘to be kept by him with his own, upon the deponer's hazard;’ and that the pursuer for his security, did thereafter go to Dundee and took his goods thither, where he lost the said sum and all his other goods, by the English taking the town by storm and plundering it; yet Fiddes convened him before the English officers at Leith, who most unjustly decerned him to pay the sum, and put him in prison till he was forced to give bond for it, and thereafter paid it unto this defender his assignee, who concurred with him and knew the whole matter; and now craved repetition condictione indebiti. The defender alleged absolvitor, because the pursuer made voluntary payment, and so homologated the decreet, and never questioned the same till now. The pursuer answered, it was no homologation nor voluntary, he being compelled to grant it, and expected no remeid from the English Judges, with whom the officers had so great power; neither could this be counted any transaction, seeing the whole sum was paid, nor any voluntary consent nor homologation, being to shun the hazard of law; so that though that these officers had been a judicature, if in obedience to their sentence, he had paid, and after had reduced the sentence, he might have repeated what he paid, much more when they had no colour of authority. The Lords repelled the defence of homologation. It was further alleged for the defender, absolvitor, because he offered him to prove, he required his money from the pursuer, before he went to Dundee, and got not the same; and it was his fault he took it to Dundee, being a place of hazard. The pursuer replied, That after the said requisition, he made offer of the money, and Fiddes would not receive the same, but continued it upon his hazard as it was before.
‘The Lords repelled the defence, in respect of the reply; and because the defence and reply were consistent, ordained the parties to prove, hinc inde; the pursuer his libel and reply; and the defender his defence.’
Stair, v. 1. p. 55.
*** This case is reported by Gilmour, No 2. p. 2923.
