Scottish Court of Session Decisions

The mother of the defender, Miss Margaret Balfour, was one of four co-heiresses who, in the year 1804, succeeded to the property of Northbar. In 1833, the pursuer Napier, a writer in Edinburgh, raised an action against Miss Balfour, as representing her mother, for payment of her proportion of an account alleged to have been incurred to him for making up titles to the lands of Northbar for the joint behoof of the coheiresses. The account consisted partly of professional charges, partly of sums of money laid out, and the last item was of date the 24th October, 1806. The sum concluded for was £52, 6d., interest being charged from 1st January, 1807, at four per cent. The defence of prescription having been pleaded, reference was made by Napier to Miss Balfour's oath. A commission was granted to take her oath at Glasgow, when the following procedure took place:—“Compeared Miss Margaret Balfour, residing in Glasgow, defender, who being solemnly sworn and interrogated under the reference to her oath, depones, That she is the only surviving issue of the marriage betwixt the deceased Mrs Katharine M'Gilchrist, and the also deceased Dr Robert Balfour, one of the ministers of Glasgow. Depones, That the deponent's mother died in the year 1817: That the deponent's mother had a brother of the name of Donald M'Gilchrist, of Northbar, who died several years ago, and that this may have happened in or about the year 1804, although the deponent docs not recollect the year: That the deponent's mother had a sister, Mrs Elizabeth M'Gilchrist, now deceased, spouse of the also now deceased John White Melville of Beunochy, advocate: That the deponent's mother had another sister, Mrs Margaret M'Gilchrist, spouse of John M'Intosh of Harwood, both now deceased: That there was a daughter of these last mentioned parties, viz. Mrs Elizabeth M'Intosh, now deceased, spouse of the also now deceased Thomas Gloag of Chapel-ton, W.S.: That the said parties had also another daughter, Mrs Ann M'Intosh, now deceased, spouse of James Balfour of Pilrig, W.S.: That the deponent's mother did, along with her sister, Mrs White Melville, and the two daughters above-named of Mrs M'Intosh, as representing her, take up the succession of Mr Donald M'Gilchrist of Northbar, above named, as co-heiresses to him. Interrogated, If the deponent is aware that the account now claimed was incurred for making up titles to Mr M'Gilchrist's succession, for the joint behoof of the different parties now named? depones, That the deponent is quite ignorant for what that account was incurred. Interrogated, Whether the deponent has read said account? depones, Negative. Interrogated, Whether the deponent was aware that she was to be examined about said account? depones, That she was. Interrogated, Whether the deponent was told by any person not to read said account? depones, That she was not. Interrogated, Whether it was for the purpose of remaining ignorant of the contents of said account that the deponent did not read it ? depones. That it was not for the purpose stated in the interrogatory that the deponent did not read said account, but because the deponent was satisfied that no claim lay against her under it. Interrogated, Whether said account was shown to the deponent ? depones, That it was, but that she did not road it. Interrogated, At what time the account was so shown to the deponent? depones, That she does not recollect precisely, but it was within the six months last past. Interrogated, Whether it was nearer six months or one month last that said account was shown to her ? depones, That she cannot specify the exact time, and can come no nearer than that in point of time. Depones, That said account was shown to the deponent by her brother-in-law, Mr John Duncan, merchant in Glasgow. Interrogated, Whether it was from Mr Duncan the deponent took her information with regard to said account? depones, That Mr Duncan certainly knew more about said account than the deponent did, but as the deponent considered that no claim lay against her regarding said account, she paid no attention to it. Interrogated, Whether Mr Duncan explained to the deponent the nature of said account? depones, That he did. Interrogated, What Mr Duncan told the deponent relative to said account? depones, That he told the deponent it was for making up titles, or something of that description, about Northbar: That Mr Duncan did not give the deponent any further explanation. Interrogated, Whether Mr Duncan informed the deponent that he had any correspondence, or other communication, with Mr Balfour of Pilrig, before mentioned, on the subject of said account? depones, That he did: That he mentioned that he had made a communication to Mr Balfour, importing his own surprise, as well as that of the deponent, at any demand being made upon her for payment of any part of said account: That Mr Duncan said nothing more to the deponent on that matter. Interrogated, Whether Mr Duncan mentioned to the deponent that he had received an answer from Mr Balfour, and what that answer was? depones, That Mr Duncan informed the deponent that he had got an answer from Mr Balfour, in which he, Mr Balfour, acknowledged the debt under said account, and stated that he had accordingly paid his proportion of it; and that Mr White Melville and Mr Gloag's representatives had done the same thing: That Mr Duncan also said that Mr Balfour had expressed his conviction that the proportion of said account claimed from the deponent was also justly due, but that did not satisfy the deponent, as she felt still, notwithstanding of such communication, that no claim lay against her on said account. Depones, That the deponent believed that Mr Balfour, and said other parties, had paid their shares of that, account as above-mentioned; and that such payments had been made very shortly before the present action was raised, Interrogated, Whether Mr Duncan showed the deponent a letter which he had received from Mr Balfour on or about the 26th day of June last? depones, That the deponent cannot at present positively say whether she saw that letter or not, but Mr Duncan would no doubt inform the deponent of it; and there being read to the deponent, by the commissioner, a paper bearing to be ‘Copy letter Mr Balfour to Mr Duncan, Hanover street, Glasgow, 26th Jane, 1833,' and marked at the end with initials ‘J. B.,' and interrogated, Whether the deponent saw the original of said copy letter and read the same, or if the import was communicated to her? depones, That the deponent has no recollection of having seen the original letter, but she saw and read a copy of it. Interrogated, How long it is since the import of the letter, of which a copy is referred to in the previous part of the deponent's deposition, was first communicated to the deponent? depones, That the deponent does not recollect when the import of said letter was first communicated to the deponent, but she saw and read a copy of It in a letter which was transmitted by the pursuer to the deponent about five or six weeks ago, or thereby. Interrogated, Whether the said letter, or the import of it, had been communicated to the deponent previously to the deponent's receiving a copy of it in Mr Napier's said letter ? depones, That the import of it was previously communicated to the deponent by Mr Duncan, and the deponent supposes that Mr Duncan made such communication to her at the time when he received Mr Balfour's letter: That the deponent showed Mr Napier's letter containing said copy to Mr Duncan, and the deponent was satisfied that Mr Duncan had received such a letter from Mr Balfour: That, so far as the deponent recollects, the copy of Mr Balfour's letter referred to in the previous part of her deposition, is of the same tenor with the copy of that letter transmitted in Mr Napier's letter. Depones, That the deponent believes that Mr Balfour would not state any thing but what he thought to be correct. Interrogated, If the deponent believes what is stated in the letter of Mr Balfour to be correct? depones, That she believes Mr Balfour would make a correct statement, so far as he knew, concerning the business therein mentioned. Interrogated, Whether, in so far as any thing stated in said letter as mentioned by Mr Balfour to be within his own personal knowledge, the deponent believes what is thus stated to be correct? depones, That she does. And there having been read over to the deponent, by the commissioner, the account libelled on No. 3. of process, and the ten relative documents enumerated in an inventory thereof (which documents the deponent's agent admits to have been got up from Mr James Balfour, writer to the signet, before named, in consequence of intimation to him of the diligence granted by the Court, at the pursuer's instance, against havers), being produced along with said inventory; and the three last articles of said inventory being shown to the deponent, and explained by the commissioner as forming part of the account libelled on, the deponent depones, That the deponent has no doubt that the pursuer performed the business applicable to said three last articles of inventory, and generally the whole of the business charged for in said account; but the deponent adds, that the pursuer did not do so on the employment of the deponent herself, or of her father or mother, so far as she knows: That the deponent has reason to believe that the late Mr Thomas Gloag, before mentioned, was the person who employed the pursuer to perform said business: That at the time when the business was transacted one of the co-heiresses, since deceased, was Mr Gloag's wife. Interrogated, Whether the deponent believes that any part of the account sued on had been paid by the deponent's parents? depones, That the deponent has no reason to think that any part of the said account was paid by the deponent's parents, because Mr Napier, the pursuer, was not employed by them, so far as the deponent knows, and no account was due to him by them. Depones, That the deponent has not paid any part of the account sued on herself, because the deponent considered that no claim lay against the deponent for it, as Mr Napier had not been employed by the deponent or her parents: That the deponent is aware that Mr James Balfour, before mentioned, had the charge of the affairs of Mr M'Gilchrist's representatives for some time, and that one of the co-heiresses was his wife at the time of the account libelled on being incurred; and the deponent thinks that he had such charge at the time when the account libelled was in-curred; but the deponent is not quite certain of the precise date, it being so long ago: That the deponent believes that Mr Balfour had such charge for a considerable time after the dates of said account, but the deponent cannot be certain as to dates, it is so far back. Interrogated, Whether the deponent believes that the account in question could have been paid by any party concerned without the knowledge of Mr Balfour? depones, That it would certainly have been made known to Mr Balfour; and the deponent adds, that if such an account had been due it would have been communicated to the deponent. Interrogated, Whether she believes that Mr James Balfour concurred with Mr Gloag in the employment of the pursuer Mr Napier? depones, That she cannot say, being ignorant of the matter, but she supposes so. Interrogated, Whether, when Mr Balfour, as above deponed to, had expressed his conviction that the proportion of the account claimed from the deponent was justly due, the deponent believes that Mr Balfour did entertain such a conviction? depones, That the deponent certainly believes that Mr Balfour had such a conviction, but the deponent thinks he was under a mistake with regard to it; for, as the pursuer had not been employed by the deponent's father or mother, or by the deponent herself, the pursuer could have no claim against the deponent: That the deponent's mother took up the succession to which the titles referred to in the account sued on were made up jointly as a co-heiress along with Mrs White Melville, Mrs Thomas Gloag, and Mrs James Balfour, above mentioned: That the deponent thereafter purchased the other shares of that succession from the other co-heiresses, and the deponent now holds the whole of said succession. Interrogated, Whether the deponent believes the account sued for, or any part thereof, to be resting-owing by the deponent to the pursuer? depones, That she does not, because the pursuer was not employed by the deponent's parents or herself. All which is the truth, as the deponent shall answer to God.”

This deposition having been reported to the Lord Ordinary, his Lordship pronounced the following interlocutor, adding the subjoined note: ^*