Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 WRIT.
Subject_3 Bill Signed by a Mark.

John Macdougal, Son to John Macdougal in Ballinaid
v.
William Oliophant, Gardener in Kelso

Date: 23 July 1766

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Macdougal, as executor, qua nearest of kin to Daniel Irvine, day-labourer at Peick, in England, and Oliphant, as pretending right by assignation from Daniel Irvine, both laid claim to a bill for L.26 sterling, granted to Irvine by John and Andrew Gillans. The form of the assignation to this bill is as follows,—being wrote on the back of the bill itself:

“Peick, April 7, 1759. This bill I grant to James Wright, for debt due to him in my trouble and sickness; and I, Daniel Irvine, give this bill of John Gullan and Andrew Gullan, as just money borrowed of me in my illment,—the sum which is 24 pounds 4 shillings and sixpence: Given this bill before these witnesses, X Daniel Irvine, his mark. Charles Campbell, wiiness, John Brown, witness.”

“Pay the contents of the within, and bill thereto relative, to William Oliphant, gardener in Kelso, or order, for value of him. James Wright.”

In a multiplepoinding, raised by the Gullans, debtors in the bill, and called before the Lord Gardenston, Ordinary, Oliphant claimed to be preferred in right of the assignee. Macdougal, the executor, objected, that the deed, by which the bill was said to have been made over to Wright, was not probative; for that it was not wrote upon stamped paper; the sum was in figures, not in writing; the deed did not bear a particular reference to the bill, and it was signed by two cross lines X, whereas the bill itself was signed by Irvine's initials. On the other hand, Oliphant contended that the bill had been assigned to Wright in security of L.24: 4: 6d. sterling, furnished by him to Irvine, upon death-bed, and that the conveyance was in the form allowed by the law of England.

The Lord Ordinary found the deed on which Oliphant claimed, to be not probative, but found it competent for him to instruct, by the oaths of the subscribing witnesses, that Irvine had adhibited his mark to it, and that Wright had advanced money, or furnished necessaries, to Irvine, to the extent of the sum therein mentioned.

Macdougal, in a representation, pleaded that, by the law of England, the seal of Irvine ought to have been affixed; that a proof of the furnishings by witnesses was prescribed; and that advances in money could not now be proved otherwise than by the writing of the deceased.

To this Oliphant made answer, that Macdougal had acknowledged the justness of the debt due by Irvine to Wright, and had offered his own bill to Oliphant, in lieu of the bill granted by the Gullans. Oliphant required Macdougal to confess or deny those facts by a writing under his hand.

On the 25th June 1766, The Ordinary appointed Macdougal so to confess or deny.

Macdougal again represented, and prayed, “that, as the question was de facto proprio et recenti, the Lord Ordinary should ordain Oliphant to refer it simply to his oath; or otherwise, that his confessing or denying should be held equivalent to his oath.”

On the 11th July 1766, The Lord Ordinary refused this representation.

Macdougal applied to the Court by reclaiming petition. He therein admitted that, according to the usual forms of procedure, it is competent for either party to require the other to confess or deny facts; but he contended “that form, which is but the handmaid of justice, ought not to be prostituted for the purpose of protracting law-suits;” that he himself is a seafaring man, at present out of the kingdom; and that, if he should be found, and should deny the facts, Oliphant would require his oath, and many yeaars might intervene before he could be found again to make oath.

On the 23d July 1766, The Lords “refused the desire of this petition, and adhered to the interlocutor of the Lord Ordinary.”

For the Petitioner, R. Campbell.

OPINIONS.

Pitfour. In a declarator of trust between Sir James Reid and the Earl of Northesk this very question was agitated, and determined agreeable to the Lord Ordinary's interlocutor.