Scottish Court of Session Decisions

This is an action for payment of a legacy of £100 claimed as having been left by the late John Potter, shipmaster in Limekilns, to the pursuer, who is his grandson. The action is founded on John Potter's disposition and settlement, dated the 14th January 1843, and is directed against the defenders as executors confirmed to James Potter, nephew of the the testator, or at least as having viciously intromitted with and taken possession of his whole means and estate. In answer to the claim the defenders state that on 15th May 1853 the pursuer being desirous of setting up in business, a sum of £100 to enable him to do so was paid by his uncle, James Potter, as the legacy due to him under his grandfather's settlement. James Potter was sole executor under John Potters settlement, intromitted with his estate, and is now dead.

On 23d November 1864 the Lord Ordinary (Kinloch) found that the defender had not proved or offered relevant and sufficient evidence to prove payment of the legacy sued for, and repelled the defences, reserving to the defender all competent reference to the oath of the pursuer. The Lord Ordinary held it was incompetent for the defenders to prove by parole evidence the alleged fact of the amount of the legacy having been paid to the pursuer. On advising a reclaiming-note for the defender, the Second Division, on 19th January 1865, opened up the record, and remitted to the Lord Ordinary to appoint parties to revise and adjust their statements respectively, and thereafter to close the record, and to proceed with the cause. On reconsidering the case the Lord Ordinary again found that the defender had not proved payment of the legacy sued for by the writ of the pursuer, and is not entitled to obtain an allowance of parole evidence in proof of the allegations made by him towards instructing payment; and of new repelled the defences. To-day the Court unanimously adhered, but received a minute tendered by the defender, referring the alleged payment of the legacy to the oath of the pursuer.