Scottish Court of Session Decisions

In this action the pursuer, who is a baker in Glasgow, sought payment of the sum of £98, which be alleged had been lent by him to his brother the defender in 1861. Under a reference to his oath the defender deponed that he had received in 1861 upwards of £50 of copper coin from the pursuer, in order to be transmitted to the Mint, but he could not remember whether he had got any loan, or any discharge for repayment of this money, or whether the sum received amounted to £100, or whether he had given silver or other money in exchange. It was, however, not due, as he had repaid his brother by supplying him with flour to the extent of £300; but whether this flour was supplied previous to his business difficulties in 1862, or after, or before or after the date of his state of affairs, or in what quantities, he could not remember; as all record had been lost by the burning of his books a few years ago. He, however, admitted the validity of a draft scheme of ranking and division, prepared for his creditors in 1862. In this the pursuer was inserted as a creditor for £98, but both the name and the figures were scored out. Why they had been so deleted he did not know. He had inserted his brother's name for this sum “to protect him fully in the event of it going to a trustee.” And the sum, though scored out, was included in the summation; the dividends for the pursuer were not deleted, and two others, who were unquestionably

Page: 604↓

creditors, were similarly deleted. In these circumstances the Sheriff-Substitute ( Murray) held the oath affirmative of the reference to the extent of £50. On appeal the Sheriff pronounced the following interlocutor:—

“ Glasgow, 11 th February 1871.—Having heard parties' procurators on their respective appeals, and reviewed the whole process, Finds that it is contended for the defender that his oath of reference is negative of the resting-owing of the sum sued for, in respect he has deponed that said sum was repaid in flour; but finds that it is not deponed either that it was a part of the original transaction that the debt was to be so extinguished, or that the pursuer afterwards agreed to hold the debt discharged in respect of the receipt of flour; Finds therefore that the statement is not intrinsic but extrinsic, being merely that of a counter claim or independent transaction, which is not inconsistent with the subsistence of the debt (see Dickson on Evidence, secs. 1650 and 1655, and authorities there quoted): Finds that the defender admits in his said oath that he received coin from the pursuer amounting in value to more than £50, and he cannot say whether it did not amount in value to £100: Finds that the defender afterwards gave up the pursuer in his state of affairs as a creditor for £98, and he depones that he cannot say that he made any payment to him subsequent to the date of said state: Finds that in these circumstances the oath is substantially affirmative of the reference: Therefore dismisses the defender's appeal, but sustains the pursuer's, and, alters the interlocutor appealed against; and instead of restricting the sum decerned for to £50, decerns against the defender in terms of the conclusions of the summons; and quoad ultra adheres.”

The defender appealed.

Watson and John Gibson for him.

Guthrie Smith and J. M. Lees in answer.

Authorities cited— Thomson v. Thomson, 20 Feb. 1830; Murray v. Murray, 12 Feb. 1839; Thomson v. Duncan, 10 July 1855; More's Stair, p. 418; Hunter v. Kinnaird, 9 Dec. 1830.

The Court adhered.