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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Rutherford v. Lawrie and Others [1867] ScotLR 5_384 (13 March 1867)
URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0384.html
Cite as: [1867] ScotLR 5_384, [1867] SLR 5_384
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SCOTTISH_SLR_Court_of_Session
Page: 384↓
Court of Session Inner House Second Division.
v.
Facts:
Circumstances in which held that an averment of the payment of a legacy to the father of a lady to whom it was due, in terms of a trust-deed, could only be proved by the writ or oath of party, and moreover was an irrelevant averment, looking to the terms of the trust-deed. Averments of acquiescence held irrelevant and too vague.
This was an advocation from the Sheriff-court of Kirkcudbright of an action brought by Mrs Jane Robertson Wood or Rutherford, daughter of the late Rev. George Wood, minister of the United Presbyterian Church, Kirkcudbright, against the representatives of the trustees and executors of the late
Page: 385↓
Miss Jean Robertson, who some time resided in Kirkcudbright, and died there on 14th October 1830. The object of the action was to recover payment, with interest since 1848, when the pursuer attained majority, of a legacy of £100, left by the said Miss Jean Robertson, in the following terms:—“To Jean Wood, daughter of the said George Wood, who was called for me, one hundred pounds, the interest of which is to be paid to her parents during the minority, but the capital to vest in her and her heirs, although not payable till she is of age.” The pursuer's allegation was, that this legacy had never been paid to her, or otherwise discharged, and was now resting-owing by the defenders as representing Miss Robertson's trustees. The defence was—(1) That the capital as well as the interest of the legacy was paid during the pursuer's minority to her father, and applied for her maintenance and education. (2) That the pursuer acquiesced in this arrangement at the time, and made no demand for payment for twenty years after she came of age. In support of these averments, the defenders asked to be allowed a proof.
The Sheriff-substitute ( Dunbar allowed a proof before answer habili modo. The Sheriff ( Hector) recalled, on the ground that the defenders' averment of payment to the pursuer's father was irrelevant, looking to the terms of Miss Robertson's settlement, which expressly provided against such a payment, and that the averment of acquiescence was too vague and unsubstantial. The pursuer having led proof in support of her case so far as necessary, the Sheriff-substitute thereupon decerned against the defenders for the amount claimed.
The Sheriff adhered.
The defenders thereupon advocated the whole interlocutors.
Gifford and Spens, for them, maintained that they were entitled to a proof prout de jure—at least, a proof by writ or oath.
Cattanach in answer.
The Court adhered in substance to the Sheriff's interlocutor—holsding (1) that payment to the pursuer's father could only be proved by writ or oath of party; (2) that, even if proved, it was irrelevant, looking to the terms of Miss Robertson's deed; (3) that the averment of acquiescence was irrelevant, as being much too vague and general; but (4) that it was for the defenders to consider whether they should not refer the whole cause to the pursuer's oath, as to the competency of which course their Lordships expressed no opinion.
Solicitors: Agent for Pursuer— John Thomson, S.S.C.
Agent for Defenders— George Wilson, S.S.C.