Scottish Court of Session Decisions

This was an action brought by the former and insisted in by the present inspector of poor for the parish of Denny, against the defender, who had filled that office from 1845 to 1858. The conclusions of the action were for count and reckoning with respect to the defender's intromissions during the tenure of his office, and for payment of £2000 as the alleged balance due by him thereon. The accounts of the defender had been from time to time audited by committees of the parochial board of the parish. After the defender ceased to hold office, a demand was made upon him to account as of new, to which he declined to accede in respect of the audits. The board then brought this action in 1860. The defender offered in his defences to explain and correct any error in his accounts which was pointed out. The board also brought a reduction of the audits, which was thrown out on the ground of irrelevancy, and the defender contended that the audits ought to protect him from any challenge of his accounts except as regarded errores calculi. The Lord Ordinary and the Second Division of the Court held that he could not plead the audits to this extent, but that the pursuer was bound to specify by minute the errors which he alleged to exist in the defender's accounts. The pursuer did so, and was allowed an investigation before an accountant upon several heads and relative items of alleged errors. In particular he was allowed an investigation in regard to alleged items of (1) sums received from other parishes not entered or accounted for, or only partly accounted for, and not disclosed to the auditing committees; (2) sums not credited to the board in making remittances to other parishes deducted from such, and not disclosed as aforesaid; (3) sums received on behalf of the board, and not credited or disclosed; (4) sums received from the sale of the effects of deceased paupers and not credited; (5) sums entered twice to the credit of the defender; (6) sums erroneously entered to the debit of the board; and (7) erroneous credits for interest, discount, bill stamps, &c. The pursuer was refused an investigation, with regard to a variety of particulars upon which he claimed a right to inquiry—viz., in respect of (1) alleged failure to account for the amount of assessments levied on the parish; (2) payments unvouched, or entered at larger sums than vouched; (3) payments to paupers said to have been dead; and (4) payments to medical men, for duties for which as alleged they were paid a fixed salary—excessive payments to paupers, and payments to himself for law expenses. The audits were held to preclude an investigation upon these matters.

An elaborate investigation was gone into before an accountant to whom the matters allowed to be investigated were remitted. The procedure subsequent to what is above given before the remit, during it, and the result of the accountant's investigation, are sufficiently detailed in the portions of the note to the Lord Ordinary's interlocutor given below. Both parties lodged objections to the accountant's report, which were repelled. The Lord Ordinary has further, for the reasons given below, found that the defender is entitled to absolvitor with expenses, upon accounting for the sums contained in the deposit-receipts referred to in the note. Inter alia, his Lordship says:—

“The defender was for nearly thirteen years—viz., from September 1845 to August 1858—inspector of poor for the parish of Denny. His accounts were from time to time subjected to audit by a committee of the Parochial Board, the examination going to such extent as was thought right by the committee. The succeeding inspector, however, or those whom he represented, were not satisfied with the accuracy of the defender's accounts; and on 9th April 1860 an action was raised against him concluding for an accounting for the whole period of thirteen years, and for an alleged balance on his intromissions, stated at a random sum of £2000.

“On the summons so raised a litigation of more than six years has supervened. The pursuer averred on the record that the accounts of the defender were false, if not fraudulent, and he set forth in specific detail, a variety of items in which he averred the accounts to be inaccurate. The amount of these errors he alleged (Cond. 14) would extend to between £1000 and £2000.

“The Court held that to a certain extent the inquiry was precluded by the audit of the committee. But, affirming an interlocutor of the Lord Ordinary, of date 10th June 1863, they considered that on certain points specially condescended upon an investigation was still open; and they confirmed the Lord Ordinary's remit to Mr Ralph Erskine Scott, accountant, to inquire into these points, and report. The errors to be so inquired into involved some hundred pounds.

“Before going to the accountant, the defender discovered a sum of £16, 0s. 7d., which he had by mistake entered twice to his credit; and on 11th July 1863, his agent wrote to that of the pursuer, tendering payment of the sum. On payment being refused to be taken, the sum, with interest (£21, 13s.), was consigned in bank on a deposit-receipt, dated 1st August 1863, to meet the demand of the pursuer.

“Again, in the course of the proceedings before the accountant, there were some small sums, amounting altogether to £4, 7s. 1d., which the defender said he would pay rather than have any controversy about them. And payment being again refused to be taken, the amount, with interest (£6, 5s. 5d.) was consigned on a deposit-receipt, dated 10th January 1865.

The accountant's report, a document of vast bulk and elaborateness, was returned on 27th April 1866. Its conclusion was that, besides handing over the deposit-receipts, the defender was due to the pursuer a sum of £12, 10s. 11d., making with interest to 19th April 1860 a sum of £16, 8s.

“But by this time a further error had been discovered, which this time the defender had made against himself—viz., the error of twice debiting himself with a sum of £11, 18s. 7d. (or £13, 19s. 8d. with a certain sum of interest) on 25th October 1851. The pursuer not admitting this error to have occurred, a second remit, limited to this special point, was made to the accountant.

“The second report, returned on 2d January 1867, was in favour of the defender; and giving effect to the correction of this error (with interest calculated to the same date of 19th April 1860), the conclusion of the whole matter was, that in place of any balance being due by the defender to the pursuer, he was creditor of the pursuer in a sum of 11s. 8d. Into this lame conclusion this great process of accounting sank, after the litigation of six years.

Page: 213↓

It appears to the Lord Ordinary that justice would not be done to the defender, were he not found entitled to expenses of process. After the audits of the committee, and with no reason to doubt the good faith of the defender, such an action as the present ought never to have been raised. In the course of thirteen years' administration of matters involving a great deal of minute accounting, it would not be wonderful if some errors should have occurred in the details. But the mere suspicion of such being found formed no good grounds for throwing on the defender the onus of accounting as from the beginning for thirteen years' intromissions. If the new inspector, or his board, seriously thought that the accounts required investigation, they ought to have put them into the hands of an accountant of their own, or an accountant named in concert with the defender; and requested explanations from the defender, such as the defender from the first professed himself willing to afford. If in place of following this course, they recklessly involved the defender in an expensive litigation of years, on a rash offer to prove specific allegations of error, and in the end have utterly failed, it is nothing but bare justice that this should be at the cost of the unsuccessful pursuer, and not of the successful defender.

On the other hand, it has not been disputed that the books kept by the defender were not of the full and satisfactory character which they ought to have possessed, and which, if they had exhibited, the accountant reports that the extent of the inquiry might have been materially lessened. The Lord Ordinary at first doubted whether on this account he ought not to impose a modification on the expenses found due to the defender. He ultimately settled in the conclusion, that the circumstance formed no justification either of the action being brought, or of its being persisted in to the effect of going to issue on alleged specific errors in the offered proof of which the pursuer has so signally failed. The committee of the board, and the Parochial Board through them, were, during the period of the defender's continuance in office, satisfied with the books as they were kept. The trivial clerical errors found out in the course of the inquiry and admitted as soon as pointed out, would most likely have all been discovered by the exercise of a little fair dealing. If, in place of following this course, the Parochial Board entered on the speculation of attempting by means of a law-suit, to fix on the defender liability for one or two thousand pounds, of which no part has turned out to be due by him, it is only right and fitting that they should have thrown on them the risk and cost of the adventure.”

The interlocutor of the Lord Ordinary has been acquiesced in by the Parochial Board.