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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Grubb v Porteous [1835] CA 13_603 (3 March 1835)
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Cite as: [1835] CA 13_603
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SCOTTISH_Shaw_Court_of_Session
Page: 603↓
v.
Subject_Triennial Prescription—Oath on Reference.—
1. Where the constitution of a debt is proved allunde, and resting-owing is referred to the heir of the debtor, who depones that the debt is not due by him, but that he never paid any part of it, or knew of any part being paid—Held that resting-owing was proved, as the averment that the debt was not due by the deponent was an opinion in law, and not a statement of fact. 2. Held by the Lord Ordinary, and acquiesced in, (1.) That the triennial prescription does not apply to advances made by a party in this country purchasing article of dress under a commission from his constituent in America, though the question arose with the constituent's heir residing in this country above three years after the constituent's death; (2.) That an annual factor fee, for uplifting rents and managing affairs, falls under the triennial prescription.
The late Miss Joan Porteous, on going to America in 1818, left a commission and factory in favour of John Grubb, builder in Edinburgh, and William Gibson, jointly or severally, to manage her affairs, with power to uplift the rents of her heritage, and to sell it by public roup.
The parties were declared liable, each for his own intromissions only. Miss Porteous married Dr Kennedy in 1823, and died without issue in 1824, having been abroad all the time. Grubb had sent to her in America various articles of dress which she expressly commissioned, and he had also accepted a bill for £50 which she drew upon him. This was prior to her marriage. Grubb incurred some trouble in calling Gibson to account, and he made various remittances to her in America. Her heritage was sold under the factory, and Grubb obtained £70 of the purchase-money, which came into his hands to account of the advances made by him to her.
Alexander Porteous, flesher in Edinburgh, served himself heir to her, and Grubb raised an action before the Sheriff of Edinburgh against him for payment of the balance due to him on his advances to her, including the cost of the articles sent to her in America, the expense of postages from her, and also a factor fee of £21, being at the rate of £5, 5s. per annum for trouble in managing her affairs.
Porteous, besides other pleas, maintained that the whole claims were prescribed, as she was dead above three years before the action was raised.
Grubb answered, that prescription was not applicable to any part of the account.
The Sheriff pronounced a judgment, which Grubb brought under advocation, and the Lord Ordinary “advocated the cause; recalled the interlocutors complained of; repelled the plea founded on the triennial prescription with regard to the articles sent by the pursuer to America for the deceased Joanna Porteous; found that the bill of exchange has been extinguished by the payment of £70 mentioned in the state; found the pursuer entitled to be paid the postages of such letters from the said Joanna Porteous as were on business; sustained the plea of prescription as to the factor-fee charged by the pursuer; but in respect he offered to instruct the said factor-fee resting-owing by the oath of the defender, allowed the pursuer to give in a minute of reference.”
Under the reference, Porteous deponed, “That the said sum (factor-fee) is not due by him to the pursuer under said factory or otherwise. Interrogated if he ever paid the above sum, or any part of it, to the pursuer, or to any person on his account? depones, That he never did. Interrogated if he knows that said sum, or any part thereof, was ever paid to the pursuer by any other person? depones, That he does not know that it ever was.”
The Lord Ordinary “having heard the counsel for the parties upon the import of the defender's oath on the pursuer's reference, in relation to the factor-fee of £21 charged by the pursuer, and upon the remaining points of the cause; in respect of said oath, found the said factor-fee resting-owing to the pursuer, and decerned against the defender for payment of the said sum of £21, in respect thereof as libelled; decerned
Porteous reclaimed.
Their Lordships observed that Grubb was liable to account to Porteous, but that the claims sustained by the Lord Ordinary were well founded.
The Court therefore adhered, “without prejudice to the defender in any process of accounting for the pursuer's intromissions to be competently brought, to enter a claim of repetition of the sums decerned for, and reserving all objections to such claim, and of new find the defender liable in expenses.”
Solicitors: W. Bell, W. S.— E. & A. M'Millan, W. S.—Agents.
_________________ Footnote _________________
* “ Note.—When Miss Porteous, afterwards Mrs Kennedy, went to America in 1818, she left a commission and factory to her uncle William Gibson and the pursuer, to manage her affairs in her absence, to recover and discharge the debts due to her, to pay the debts she owed, to uplift the rents of her heritable property, to sell that property, and receive the price, authorizing them to make reasonable charges for their trouble. It is proved by the correspondence produced, that the pursuer acted on that footing, and had a good deal of trouble in the management of Mrs Kennedy's affairs, in remitting her funds to America, in calling her uncle, Mr Gibson, to account, and valuing and selling her heritable property in Edinburgh. It is proved that the management continued till the lady's death in the end of 1823 or beginning of 1824. The pursuer's claim being thus constituted, it appears to the Lord Ordinary that his charge of five guineas per annum is reasonable. But more than three years having elapsed between Mrs Kennedy's death and the raising of this process, the claim falls under the triennial prescription, and the pursuer has referred to the defender's oath. If the constitution of the debt be established, aliunde, it is the fact of resting owing alone which becomes the subject of the reference. The defender admits in his deposition, that he neither paid the debt, nor knows it was paid by any other person; and, therefore, agreeably to the recent decision on which the pursuer relies, it is thought the defence of prescription is elided. The defender indeed depones that the debt is not due to the pursuer, but that is not a statement of fact; it resolves into an opinion in law.”