Scottish Court of Session Decisions

The pursuer Roger raised action as “executor-creditor of the deceased George Douglas Aiton, writer in Hamilton,” against the defenders, Mrs Henderson and others, trustees of the late James Bruce of Broomhill, setting forth (in his amended summons) that the deceased had carried on business as a writer along with his brother, Robert Alton, residing in Hamilton; “that a copartnery, or nominal copartnery, existed between them for several years prior to the death of the said George Douglas Aiton, which happened on the 4th day of April, 1834, and which copartnery was known and carried on under the firm of Robert and George Douglaz Aiton, writers in Hamilton; that notwithstanding the use of this firm, each of the partners was in the practice of taking and attending to the business of certain clients, who were considered his own clients, and the accounts due for which were understood and held, by the agreement or understanding of the partners, to be due to, and to be the exclusive property of the partner by whom the business was done; that the deceased James Bruce of Broomhill employed the said George Douglas Aiton, and the said firm, to do certain business during the years between the years 1828 and 1832, both inclusive; that the said James Bruce, Esq. was, at the period of his death, justly addebted resting and owing to the said firm of Robert and George Douglas Aiton, the sum of £136, 12s. 10 1 2d., being the amount of an account for law proceedings, &c.; that the business charged for in the said accounts, and the cash disbursements in it, were made solely by the said George Douglas Aiton, who was entitled to receive the whole amount thereof as his own property; that the said Robert Aiton has disclaimed all right or interest therein, and the pursuer is in a situation, and is ready to grant a discharge of the said account on payment.” The summons concluded to have Bruce's trustees ordained to pay to the pursuer, as executor-creditor of G. D. Aiton, the aforesaid sum.

As a preliminary defence against the action, the trustees pleaded, that the pursuer, as executor-creditor of the deceased George Douglas Aiton, has neither libelled nor shown any sufficient title to sue for, and recover or discharge a debt said to have been resting and owing to the firm of Robert and George Douglas Aiton, writers in Hamilton, or to George Douglas Aiton, as individual partner of an alleged nominal company.

The Lord Ordinary pronounced the following interlocutor, adding the note subjoined ^*:—“The Lord Ordinary having heard the counsel for the parties on the preliminary defence (reserved by a former interlocutor), that the debt is still libelled in the amended summons as a debt truly and only due to the firm or copartnery of R. and G. D. Aiton, and not to G. D. Aiton as an individual, while the pursuer has neither produced nor alleged any title to sue, except for what may be due to the said G. D. Aiton individually: Sustains the said preliminary defence; dismisses the action, and decerns: Finds the defender entitled to expenses.”

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* “ Note.—The acknowledgment or disclamation by Robert Aiton will not supply the want of a title from the company, though an assignation of his share of the company debt to the pursuer would have been effectual, and might, one would think, have been as easily procured. Or if the debt, as between the defender and G. D. Aiton was truly a debt due to the latter individually, why was it not so libelled, instead of a broad unqualified statement, that it was owing only to the firm from which, or the surviving partner of which, the pursuer held no shadow of a title to pursue? The summons, in short, is quite as defective as before the amendment, and the statement in articles 2 and 5 of the condescendence are neither sufficient to supply the defect nor admissible, though they were sufficient. See the case of Ewing's Trustees, 25th February, 1829. S. 7, 464,”

The pursuer reclaimed, but

The Court unanimously adhered, finding additional expenses due.