Alexander Hamilton v. James Richmond and Others, Trustees of Andrew Lindsay [1825] UKHL 1_WS_35

UKHL
Alexander Hamilton v. James Richmond and Others, Trustees of Andrew Lindsay
[1825] UKHL 1_WS_35 · 1820-01-21
Lords Reston and Cringletie .

Subject_ Oath — Loan. —

Under a reference to the oath of party, whether a certain sum of money had been advanced in loan, found, (affirming the judgment of the Court of Session), That the oath did not prove that the money had been advanced in loan, and therefore the defender was entitled to absolvitor.Hamilton raised, in the Sheriff-Court of Ayrshire, an action against Lindsay, for repayment of L.190, alleged to be the amount of a loan made by Hamilton to him. Lindsay insisted that it was not a loan, and denied that he ever promised to pay it. In the course of the subsequent proceedings parole proof was adduced as to the fact, and the declaration of Lindsay taken. The Court of Session, before whom the case had come by advocation, in respect the libel concludes “for payment of a sum of money, alleged to have been given in loan to the defender, which was not capable of being proved by witnesses,” assoilzied the defender, without prejudice to Hamilton insisting in any other action which he might be advised to raise, and reserving to Lindsay his defences.Hamilton having raised a new action, Lindsay alleged res judicata; denied that he had borrowed the money; and stated, that it had been put into his hands with the view to retire a bill, so as to enable Hamilton to be elected trustee on a sequestrated estate for which there was a competition. The Lord Ordinary, “in respect of the judgment in the former action, and that the pursuer makes no reference to the oath of the defender, sustained the defences;” and on advising representation and answers, adhered. Hamilton petitioned for alteration, or at least to be allowed to put in a special condescendence of the facts and circumstances alleged by him, and that the answers thereto might be subscribed by Lindsay himself. Thereafter the case having been taken up on condescendence and answers, their Lordships, on the 21st January 1820, refused the petition, and adhered to the interlocutor complained of: found Lindsay entitled to expenses since the date of the first interlocutor of the Lord Ordinary, and remitted to the Lord Ordinary to receive a reference to oath.By a minute of reference Hamilton offered to prove, 1. That in the beginning of January 1812, John Deans, writer in

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Parties were heard upon the import of this oath, and the Lord Ordinary pronounced the following interlocutor:—defender, with James Richmond, late of Auchincloech, granted a bill for about L.166 to James Boreland in Burnaan, which, after the death of the last, came into the hands of John Deans, writer in Kilmarnock: That James Richmond having become bankrupt, and his estate having been sequestrated, a competition took place for the office of trustee for his creditors, for which the pursuer was one of the candidates. Finds, that the pursuer wished and urged the defender to retire from Deans the said bill, probably believing that Deans would vote against the pursuer, and would not therefore part with the bill till after the election, unless he was required so to do by one of the acceptors, who had right to retire it. Finds, that the pursuer, on the night before the election, offered to accommodate the defender with money, with which he might retire the bill, which offer was not accepted; and on the day of the election he repeated that offer three times, which was as often refused. Finds, that after this, on same day, the pursuer, by his own admissions, sent John Gregg, then in Greenock-Mains, to the defender again, to offer to him money wherewith he might retire said bill, which Gregg, in presence of witnesses, offered to lend to the defender for that purpose, and which the defender again refused, telling Gregg that he would borrow money from him nor no man to retire his bill, as he was not going to do it at the time. Finds, that on this Gregg gave the defender the money, and advised him to go and retire his bill, take it home with him, and keep it, for the defender would never more be troubled with it; and that the defender did accordingly retire said bill. Finds, that in one part of the defender's deposition, in answer to a question whether he thought himself under an obligation to the pursuer or to Mr Gregg for the money, he deponed, that he considered himself under no obligation to the pursuer, or any other man; and, in another part, in answer to a question, whether the pursuer gave him to understand that he, the pursuer, was to give the defender a present of the money, the defender deposed that he never did; and, lastly, being interrogated whether he did or did not understand, that the money which he admits to have received from John Gregg was given in loan, the defender depones, that he understood that the money was given to him by Mr Gregg to get the bill from Deans. Finds, that from the combination of these different passages of the defender's depositions, that the true import of the whole is, that the defender did not only not agree to accept of the loan from the pursuer, and become bound for it to him by an obligation to repay it, separate from and independent of said bill, but did positively refuse to receive such a loan; and that the purpose for which the money was advanced was, that he should retire the bill, and thereby prevent Deans voting on it against the pursuer in the election of a trustee on Richmond's estate. Finds, that in the course of the pleading it was stated for the defender, and not denied by the pursuer, that the said bill, when retired, was discovered to have been written on an improper stamp, and was therefore null, and had never been demanded to be given up by the defender to the pursuer since it had been retired, which fact of its nullity must have been probably unknown at the time the bill was retired. Finds, therefore, that this action is a plan devised to render the defender liable for the money due by said bill, by means of an alleged separate loan positively denied by the defender, and therefore assoilzies him, and decerns. Finds him entitled to expenses, the taxation of which remits to the auditor of Court, reserving to the pursuer, if he shall be so advised, to demand delivery of said bill from the defender, and payment of its contents, as accords.”
“The Lord Ordinary having, on the 14th instant, heard parties' procurators on the import of the defender's deposition, and whole cause, and having since advised the whole, finds that the

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The defender, Lindsay, died before a representation against this judgment was advised. The process having been transferred against Lindsay's trustees, the Lord Ordinary pronounced this interlocutor:—
“The Lord Ordinary having advised this representation, and considered the state of the process, as now wakened and transferred, sees that the fact alleged by the defender at the pleading, viz. that when the bill in the hands of Deans was retired, it was found to be written on unstamped paper, and thereby void; and as it appears to the Lord Ordinary, that the true purpose of advancing the money to the defender was to enable him to retire that bill, which would in all probability have been demanded from him if it had been worth demanding, and not to establish a debt against him independent of that bill; and that it would be unjust to make him pay a debt indirectly, when he was not liable for it directly under the bill; of new refuses this representation.”

Hamilton petitioned; but the Court, on the 23d of January 1823, adhered. *

The Judges were of opinion, that although the precise nature of the transaction did not clearly appear, yet, as the pursuer had not proved a loan, he could not succeed in his action.Hamilton appealed.

Footnote

* See 2. Shaw and Dunlop, No. 134.

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Appellant .—The facts are established which prove that Lindsay knew that the money was given to him by the appellant in loan, and not as a donation. But even had that not distinctly appeared, it must be held to be in loan, and not in donation. Donation is never presumed, and here it is not even alleged. The money was not given either to oblige Lindsay to pay a debt not directly exigible, nor to procure his vote.Respondents .—It is not maintained that the money was a donation. The loan libelled has been disproved. Instead of the appellant having substantiated any obligation to repay this money, it has been proved that the appellant, when the money was advanced, came under an express obligation that Lindsay should be no more troubled with the debt.The House of Lords “ordered and adjudged, that the appeal be dismissed, and the interlocutors complained of be affirmed, with L.100 costs.”Counsel: Appellant's Authorities. —Stair, Inst. 1. 8. 2.; Bankton, Inst. 1. 9. 20.; Ersk. Inst. 3. 3. 92.; Mor. Dict. 1151.; Fount. Dec. vol. ii. p. 172. 644.; Ross v. Fidler , Nov. 24. 1809, (F. C.).Solicitors: J. Richardson— J. Campbell,—Solicitors.