Scottish Court of Session Decisions

This case came before the Court on a reclaiming-note from Lord Jerviswoode's interlocutor, in a question as to the mode of proof. The pursuer concluded for payment of a sum of £ 1369, 8s. 9d. principal and interest, in respect of certain furnishings and disbursements, which he alleges he made to, and on behalf of, his late brother, the husband of the defender. These consists partly of loans of money and prescribed bills, as to which it was admitted that the proof must be restricted to writ or oath. But a question arose with regard to certain payments of rents, accounts, &c., which the pursuer is alleged to have made on behalf of his brother, and for which he holds receipts in his brother's name; the defender maintaining that the proof as to these ought also to be restricted to writ or oath, while the pursuer contended for a proof prout de jure. The Lord Ordinary sustained this latter contention.

The following is the interlocutor of the Lord Ordinary:—

“The Lord Ordinary having heard counsel on the matter referred to in the preceding interlocutor of the 14th February last, and made avizandum, and considered the debate and whole process— Finds that the averments contained in the 8th and 11th articles of the revised condescendence for the pursuer may competently be proved by writ or oath, but not otherwise; and second, that the averments contained in the other articles of the same, in so far as not admitted, may be competently proved by evidence prout de jure: And, with reference to the foregoing findings, appoints the cause to be enrolled, with a view to further procedure therein.

Note.— The questions with which the Lord Ordinary has dealt in the present interlocutor present features of some delicacy, and were argued before him in a very satisfactory manner.

He has since examined the various reported cases to which he was referred in the course of the debate, and has come to the conclusion that, while the averments in the 8th and 11th heads of the condescendence can be competently proved by writ or oath only, as indeed was fairly admitted on the part of the pursuer, it would be inconsistent with justice, and with the authorities referred to, so to limit the proof as regards the remaining averments.

The cases bearing on this matter appear to be very correctly noted by Mr Dickson in his work on Evidence, vol. i, pp. 286–7, § 396, where he states consistently, as the Lord Ordinary holds, with these authorities and the true state of the law as now recognised, that the legal presumption that a debt which has been paid has been so paid by the debtor, or with his funds, may, under the later cases, be redargued by a proof prout de jure, or by contrary inferences.

Looking to the state of the facts here, and having regard to the relationship and character of the transactions between the pursuer and his deceased brother, as set forth in the record, the Lord Ordinary is of opinion that the investigation demanded by the pursuer ought to be allowed. In what form it ought to proceed may probably be best considered when it is ascertained whether or not the views on which the Lord Ordinary has so far proceeded are to regulate the mode of proof.”

The defender reclaimed.