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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bertram & Co. v. Stewart's Trustees and Scott [1874] ScotLR 12_156 (15 December 1874)
URL: http://www.bailii.org/scot/cases/ScotCS/1874/12SLR0156.html
Cite as: [1874] ScotLR 12_156, [1874] SLR 12_156
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SCOTTISH_SLR_Court_of_Session
Page: 156↓
Court of Session Inner House First Division.
[
v.
Facts:
In a question whether a prescribed account was resting owing, a reference was proposed to the oath of the party to whom the goods (wine and spirits supplied to a hotel-keeper) had been furnished, and to his manager. Held that the reference was incompetent.
This was an action as the instance of Messrs John H. Bertram & Co., wine merchants in Leith, against the Trustees of the deceased William Stewart, hotel-keeper, Edinburgh, and also against George Scott, hotel-keeper, Portobello. The summons concluded against all the defenders for payment of £8, 6s. 9d., and against Stewart's Trustees for payment of the further sum of £62, 4s. 3d.
The defender George Scott, and the deceased William Stewart for some time previously to the death of the latter, carried on business as hotelkeepers in the Crown Hotel, Edinburgh, under the firm of Scott & Stewart, of which they were sole partners. After the death of Stewart, Scott continued to carry on the said partnership concern for the joint behoof of himself and the other defenders, as trustees of Mr Stewart, until about the beginning of December 1869. At that date the co-partnery was formally dissolved; and thereafter, for a considerable time, the business of the hotel was carried on by Scott, as manager for the other defenders.
The pursuers averved that during the subsistence of the firm of Scott & Stewart they furnished to them porter and brandy to the amount of £8, 6s. 9d., being the sum first concluded for in the summons; and that, after the dissolution of the copartnery, on the order of Mr Scott, they furnished to the hotel, between 3d December 1869 and 5th March 1870, goods to the amount of £62, 4s, 3d., being the second amount concluded for in the summons.
The defenders pleaded, inter alia, prescription.
On 18th July 1874, the Lord Ordinary ( Gifford) pronounced an interlocutor sustaining the plea of prescription.
The pursuers put in the following minute of reference to the oath of the defenders:—“ Trayner, for the pursuers, referred and hereby refers the whole cause to the oath of the defenders, including the oath of the said George Scott as manager for the other defenders.—In respect whereof, &c.— John A. Bertram & Co. John Trayner.”
The Lord Ordinary (
Curriehill ) pronounced this interlocutor:—“ 4th December 1874.—The Lord Ordinary having heard parties' procurators on the Minute of Reference to the oaths of the defenders—Sustains the same, so far as made to the Trustees of the deceased William Stewart, and appoints them to appear and depone accordingly, and answer all pertinent interrogations: Quoad ultra refuses to sustain the reference, and grants leave to the pursuers to reclaim against this interlocutor.”The pursuers reclaimed.
Authorities cited— Dickson v. Ross, 9 S. 125 Dickson on Evidence. § 1573; Hunter v. Dunn, Hume, 584; Cromer v. Duke of Gordon, 20 Jan. 1830, 8 S. 353; Mackay v. Ure, 7 March 1849, 11 D. 972; Smith v. Falconer, 17 Feb. 1831, 9 S. 474; Pattenson v. Robertson, 9 D. 226; Ersk. iii. 5, 9 ix. 2. 10; Mein v. Towers, 11 July 1829, 7 S. 902; Ferrier v. Graham, 10 Feb. 1831, 9 S. 419; Borthwick, 16 S. 1136; Adam v. M'Lauchlan, 9 D. 560 Guthrie, M, 12,485; Gilmour, M. 1242.
At advising—
It is pleaded that the accounts have undergone the triennial prescription, and, by interlocutor of 18th July 1874, Lord Gifford sustained this defence. The pursuer then put in a reference to oath in these terms—(reads ut supra).
The Lord Ordinary, by the interlocutor reclaimed against, sustained the reference “so far as made to the trustees of the deceased William Stewart.” I do not think that that is a correct interlocutor, or that it can stand, for it sustains a reference which has not been made. The reference proposed is to the oath of the whole defenders, and a reference to the oath of the defenders, excluding Mr Scott, is a different matter, and till such a reference is made we cannot sustain it.
We must keep in view the precise terms of the statute of 1679. All actions must be pursued within three years, “otherwise the creditor shall have no action, except he either prove by writ or by oath of his party.”
Page: 157↓
The question is, whether a reference to the oath, not of the creditor, but of the manager, is competent. In answering this question we must be guided by the precise and peremptory provisions of the statute. It says that reference may be made to the oath of the party, and to no one else. So we cannot sustain the reference in the terms here proposed.
The pursuers put in a Minute of Reference to the oath of the defenders, excluding the oath of the said John Scott.
The Court pronounced the following interlocutor:—
“The Lords having heard counsel on the reclaiming-note for the pursuers John A. Bertram & Company against Lord Curriehill's interlocutor, dated 4th December 1874, Recal the said interlocutor; sustain the reference contained in the minute No. 10 of process; find the defenders entitled to expenses since the date of the said interlocutor reclaimed against; allow an account thereof to be given in, and remit the same when lodged to the Auditor to tax and report.”
Counsel for Pursuer— Trayner. Agent— Patrick S. Beveridge, S.S.C.
Counsel for Defenders—Dean of Faculty (Clark) and Rhind. Agents— Ferguson & Junner, W.S.