Scottish Court of Session Decisions

This was a question as to the competency of a reference to oath. The action was one for payment of a bill. The defences were—(1) that no value was given; (2) that the pursuer was due to the defender a counter-claim; and (3) that the pursuer had granted to a co-obligant on the bill a discharge of the debt contained in it. On 23d December 1865, the Lord Ordinary (Barcaple) found (1) that the averment of no value was too vague and indefinite to entitle the defender, for proving the same, to get access to the books and papers of the pursuer by means of a diligence; (2) that the counter-claim averred was illiquid, and cannot be established in this action, but must be constituted in a separate action; and (3) that the defender was entitled to a diligence for recovery of writing to prove the discharge averred. The defender thereupon lodged a minute referring the whole cause to the oath of the pursuer. This reference the Lord Ordinary refused to sustain. He then lodged another minute referring to the pursuer's oath the whole cause, “in so far as the same has not been disposed of by interlocutor dated 23d December 1865, now final.” The Lord Ordinary refused to sustain this reference also. The defender reclaimed, and explained that he never intended that the counter claims alleged, and which it had been held finally he could not establish in this action, should be referred to the pursuer's oath. The pursuer argued that the reference should be of the two defences of no value and discharge. The object of the pursuer seemed to be to exclude questions as to statements by the defender to the effect that the bill was one of a series of transactions betwixt him and the pursuer. After considerable discussion the interlocutors of the Lord Ordinary were recalled, and the first minute of reference was sustained, the defender having added to it, on the suggestion of Lord Deas, the words, “the defender, admitting that his counter-claims cannot be constituted or inquired into in this action.”

The Court, however, thought that the general reference was sufficient without this addition. The proper and only competent reference after a cause was decided was a reference of the whole cause. Under such a reference it was only competent to ask questions as to what was the cause, and, of course, the defence as to counter-claims which a final interlocutor had decided could not be established in any way in this action was now out of the cause. It was difficult to see that the circumstance that this reference was tendered before the decision of the cause made any difference. The defender might wait until the action was decided against him, and then tender a reference of the whole cause, but the pursuer had no interest to insist that he should take this course. If the matter as to the bill sued for being one of a series of transactions was properly averred on record, then the defender might ask the pursuer questions about it. If it was not, then he could not do so.