Scottish Court of Session Decisions

I am therefore disposed to recommend that, as far as the defender is concerned, the only proof to be allowed to him is a conjunct probation. We must therefore recal this interlocutor, and remit to the Lord Ordinary, with instructions to him to allow a proof in the manner I have suggested.

Lord Deas—It is necessary to attend to the object of this action. It is brought on the narrative that in 1848 a written contract was entered into between these two brothers, to the effect that the pursuer should pay a variety of debts due by the defender on certain conditions. That writing is holograph of the defender, but it is not a probative writing so far as testing is concerned, and not probative as a mutual deed. It is said that that was acted on by the pursuer going on to pay all these debts for his brother. If this document were stamped we should have a relevant averment—to the effect that it was acted on—proveable prout de jure, to the effect of setting up the document as a valid and sufficient contract, while the same proof would also prove that the pursuer implemented his part of the contract. The only difficulty there is, that the document is not stamped; and though we might deal with it under the section of the recent Act, there is nothing in that Act to prevent the parties from getting it stamped at once, without any order, and probably that is the simplest course. But assuming the document to be stamped, the question comes to be whether there is any doubt that parol testimony is admissible (1) to set up the document as a valid document, and (2) to make the money exigible under it, in respect that the pursuer has fulfilled his part of the contract? At present I see no doubt of the competency of proof prout de jure for these two purposes, and that is proof of the whole case. If there is any room for doubt, that difficulty is removed by proof before answer. I should rather be disposed to hold, that if we allow this proof before answer, we don't contemplate that at every stage the proof is to be stopped by objection to its competency, on the ground that writ or oath is alone competent. It will be better to allow the proof to be completed, and then it will be open to the Court to lay aside any incompetent evidence. Supposing the Lord Ordinary not to decide these questions in the course of the proof, which I humbly think would be the more expedient course, the question will be open for his consideration at the end of the proof.

As to the counter-claims, I agree that those which are stated in a different character, both in strict form and in expediency, if they are to be insisted in, must be so in a counter-action.

As to the claim for board, that is a more delicate question; but I am disposed to think that it should be dealt with in the same way. It is a very anomalous claim, and I am not prepared to say that the triennial prescription would not apply. Looking to the necessity of a very distinct statement of such a claim, much more distinct than there is here, and considering that there is no rule that we must allow a counter-claim of whatever kind to be set up in defence, but that that is to some extent a question of discretion, I am disposed to think there should be a separate action.

Lord Ardmillan—I am of the same opinion as your Lordship on all the points in this case, except the last, on which I have some doubt, unless the judgment is so qualified as to save the defender's right to prove the ninth article in his statement by reference to oath.

The claims of the defender, in so far as made by him in the capacity of executor of his father, or of his sister, cannot, I think, be pleaded as proper counter-claims in this action. But the ninth article of the defender's statement sets forth a personal claim, and contains averments that the pursuer at one time, and his wife and family at another time, lived in the defender's house, and boarded with the defender, and .that the pursuer is indebted to him accordingly. This claim is apparently prescribed. If so, it can only be proved by writ or oath of the pursuer; but proof by writ has not been produced, and there is no reference to oath. It did occur to me that, if on this point you now decern in favour of the pursuer, and compel the defender to raise another action, you do practically, in this action, refuse to the defender proof by writ or oath of these averments in the ninth article. If such proof is held to be still available to him, I do not differ from the judgment; but I think that point should be made clear.

Lord Kinloch—I agree with your Lordship in the chair.

It is enough for the determination of the first point that some proof is essential, and I concur in thinking that the proof to be allowed should be general, leaving all questions as to the admissibility of particular items of evidence to be determined afterwards.

As to the counter-claims, it is an insuperable objection to them—except to the last—that the defender makes them in his capacity of executor, and not in his individual character. There is, in that view, no concurms debili et crediti.

With regard to the claim for board, the objection to it, in my view, is, that it is not set forth with sufficient precision. It is not enough to aver merely that the pursuer lived in the defender's family for a certain time. The defender was bound to set forth that he individually supplied board to the pursuer, and in such circumstances as to imply the constitution of a debt. He was bound also to state whether the board was due by agreement, and, if so, what was the rate agreed on; or, if not due by agreement, he should have stated what he alleged to be a reasonable amount of board. All these particulars must be attended to in making a relevant claim of board. If we refuse the defender a proof of his claim for board in this action, that

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