Scottish Court of Session Decisions

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^* “ Note.—This is an action of count and reckoning. But after hearing the question, argued, and looking into the documents in process, the Lord Ordinary thinks it essential that there should be some more distinct explanation in regard to various matters of fact, than that afforded by the record as it stands. The action is brought to obtain an account of the intromissions of the deceased Alexander Maconochie, with the succession of James Stuart. Alexander Maconochie, a shoemaker in Aberdeen, and the late Helen Maconochie, wife of William Johnstone, were the next of kin, and executors of James Stuart; and the same Alexander Maconochie and John Cameron were Stuart's heirs-portioners. Stuart had died in the year 1815; and, in 1816, a written agreement was entered into between Alexander Maconochie and Helen Maconochie, by which they consented to share the benefit respectively accruing to them as heir-portioners and joint executors; and in the same deed, Helen Maconochie granted to Alexander a power of attorney to uplift her share of the executry as joint-executrix with Cameron.

“It appears that Messrs Hutcheon and Donaldson, writers in Aberdeen, were employed by Cameron and Alexander Maconochie to realize the succession of Stuart; and there are documents in process which prove that Donaldson did pay to Alexander Maconochie part of Helen Maconochie's share of the moveable succession. In particular, £41, 16s. 6d. appears to have been paid to him in July 1816, and £500 in May 1818;—for the half of which sums he, by his agreement with Helen Maconochie, was bound to account to her.

“In the year 1821, Helen Maconochie recalled the power of attorney granted to Alexander, and substituted the pursuer, the widow of Stuart, in his place. But the deed contains no statement that Alexander Maconochie had not accounted for his prior intromissions, and it gives no power to pursue for such intromissions. The recital bears merely that Alexander Maconochie had been empowered to recover Helen's share of Stuart's executry, ‘and that considerable funds have not yet been recovered by his executors;” and it gives a power to recover these funds, ‘in so far as not already recovered by me (Helen,) or by my attorney or coexecutor.’ This conveyance was merely in trust, and bound the pursuer to account to the granter for all sums which might be recovered under it. It is averred by the pursuer, that this deed recalling Alexander Maconochie's power was intimated to Alexander Maconochie; but this is denied on the other side. One thing is certain, that, notwithstanding such recal, Alexander Maconochie did proceed, without any objection on the part of the pursuer, the new attorney, to recover funds due to Helen. For, in the year 1824, he raised an action against the representatives of Donaldson; and ultimately, in the year 1827, drew a dividend of £120 from Donaldson's executor, being a dividend on the debt due by Donaldson on account of his intromissions, as agent, with the moveable estate of James Stuart. By this time Helen Maconochie was dead, although the period of her decease is not specified in the record; and Alexander Maconochie also died in the end of the year 1827. Shortly after his death, the pursuer obtained a second deed, dated in December, 1827, from John Johnston and Helen Johnston, the son and daughter of Helen Maconochie, setting forth the original power_of attorney to Maconochie, the deed 1821, recalling that power, and in particular, that, notwithstanding that recal, Alexander Maconochie had continued to intromit with the executry, and had drawn the dividend on Donaldson's estate. It then sets forth, that ‘the said Mrs Jean Watson, otherwise Stuart, has made payment to us of a certain sum of money in full of our right of reversion, under the deed of assignation, conveyance, and trust, herein-before narrated, and in consideration of our granting these presents.’ And upon that recital’ the granters renounce the right of reversion competent to them under the deed 1821, discharge the grantee, the pursuer, and convey to her their right to call the representatives of Alexander Maconochie to account. There is no averment upon the record as to the precise date of the first demand made against the defenders, the representatives of Alexander Maconochie, under this deed; but in the year 1831 the present action of accounting was brought against them, the summons being laid exclusively on the first deed by Helen Maconochie in 1821. This summons was afterwards amended by an addition founded on the deed 1827, and in this action a record was afterwards made up in usual form.

“From the documents produced, the charge against Alexander Maconochie appears to be pretty clearly established. In particular, it Seems to be established, by the books of Donaldson and Maconochie's receipts, that the above-mentioned sums of £41, 16s. 6d. and £500 were received by him to account of Stuart's executry. Some of the articles of discharge are admitted; but the more important of them are denied, and in particular a payment to Helen Maconochie of £250 in June 1818, being the half of the £500 drawn by Maconochie. Papers bearing to be receipts for that and other payments have been produced by the defenders, which papers are said to be signed by the son and daughter of Helen Maconochie, who, it is admitted, could not write. The authenticity of these signatures is denied by the pursuer, but all question upon this point is superseded by the consideration that they are unstamped, and consequently cannot be received.

“Independently of these documents, however, it appears to the Lord Ordinary that the case of the pursuer still may require some farther explanation. Alexander Maconochie, whose intromissions are now to be accounted for, was a shoemaker in Aberdeen, against whom no very unfavourable presumption can arise from the mere circumstance of his failure to keep regular accounts, and to take regular vouchers. Helen Maconochie was confessedly unable to write, and was as confessedly In circumstances not likely to dispose her to leave her money unaccounted for in the hands of her attorney. In so far as the Lord Ordinary can judge from the documents produced, the amount of his intromissions must have been a matter of notoriety, or at least easily attainable, as he could intromit only in conjunction with Cameron, the other executor, and did, as it appears, intromit only through the medium of Donaldson. The sums chiefly in dispute are sums drawn by him prior to or in the year 1818. The first assignation by Helen Maconochie to the pursuer, in 1821, affords a strong presumption that Helen, the granter, did not then consider Maconochie to have any money of hers in his hands; and though she survived that deed several years, (the precise time is not mentioned in the record,) it is not averred by the pursuer that she during her lifetime made any demand on Maconochie for his intromissions. Even in the deed 1827, granted after her death by the son and daughter of Helen Maconochie, the only intromissions specified are those said to have been had by Maconochie subsequently to the deed 1821, and, in particular, the dividend drawn from Donaldson's estate; and, last of all, the pursuer has declined, when called upon, to state what was the consideration she gave for the last-mentioned deed. Under all these circumstances, the Lord Ordinary thinks this claim of accounting is to be received with some suspicion, and certainly with great caution. The intromissions mainly in dispute were had as far back as the year 1818, by a person from his situation and, habits of life presumably Ignorant of all the precautions of regular accounting. The action was raised in 1831, after a lapse of thirteen years, and long after the death both of the intromittor and his constituent. There is no evidence, nor even any averment, that while they lived any claim had been made by the latter against the former; and there is an implication, or something nearly amounting to it, from the deeds in process, that no such claim was understood to exist by the parties interested. The Lord Ordinary does not say that these considerations are conclusive against the pursuer; but he thinks they fairly warrant the demand for some farther explanation; and upon this ground he has pronounced the prefixed order, for which, as being somewhat unusual, he has thought it right to assign his reasons.”