Scottish Court of Session Decisions

This was an action raised in the Sheriff Court of Lanarkshire for the sum of £88, being the amount of an account for coals and dross said to have been furnished to the defender John Marshall by the pursuer Robert Grier Cooper. The account consisted of 210 items, the first of date May 25, 1853, the last of date May 13, 1865. The action for payment was raised on December 26, 1876, when the defender was eighty-one years of age, and so infirm as to be unable to leave his bed.

The defender stated—“(3) The defender admits having received from the pursuer various quantities of coals, but they have all been settled for. The late Mr Robert Hamilton acted at the time the coals in question were supplied as pursuer's manager, and also as factor to the defender, and when Mr Hamilton settled with the defender for the rents and feu-duties uplifted by him he at various times made deductions for coals supplied by the pursuer. (4) These deductions, along with contra account due to the defender, the defender believed settled all transactions between them many years ago.” He pleaded—“(1) The account sued for being prescribed, can only be proved by the defender's writ or oath. (2) The defender having paid or compensated the pursuer for the goods sued for, he is entitled to absolvitor with expenses.”

A proof was allowed by reference to the defender's oath. It was taken by commission, when the defender, inter alia, deponed as follows—“I am eighty-one years of age. I have known the pursuer for upwards of twenty years. He was a coalmaster at Shaws and Raploch. When I had a limework at Stonehouse I got dross from him, but I am not sure about getting coal. I also got dross for a brickwork I had at Machan, and sometimes coal. All the household coal came from pursuer's colliery. I never to my knowledge got any account from the pursuer, unless it was when the pursuer got wood and stones from me, and I considered the accounts were balanced. I never had any settlement with Mr Cooper that I remember of. I had no objections to the account sued for. I don't know how we never had a settlement. I do not remember whether I did or did not render an account to the pursuer. Mr Cooper was owing me above £30 for wood, and I supplied stones and bricks.… The account for stones and bricks referred to would amount to between £20 and £30, but I kept no books, except what the men at the quarry and brick work kept—that is, they kept a note of what was sent out. I cannot tell why accounts were never rendered between us. I cannot tell why I did not render an account to the pursuer, if it was not that I considered the balance due me so small that I did not interfere with them. I paid some taxes, but I cannot say whether for the pursuer or his stepfather; but I think that was the last transaction we had. I never paid the pursuer any money, as I considered the one account squared the other, and I do not owe the pursuer anything. I always considered he owed me.”

The Sheriff-Substitute ( Birnie) found the oath negative of the reference, and assoilzied the defender, adding this note:—

“ Note.—The account sued for commenced in May 1853 and ended in May 1865, eleven years and seven months before the petition was served. No reason is proved for this delay, nor is it proved that the account in its present shape was ever asked for from the defender. The defender admits receiving dross and coals from the pursuer, but depones that accounts were balanced by wood, bricks, stones, and taxes supplied to or paid for the pursuer. That statement is intrinsic. (Dickson on Ev., secs. 1641–1646.) The details of the wood, &c., are unsatisfactory, the defender deponing that the pursuer was due him above £30 for wood, and between £20 and £30 for stones and bricks, and not mentioning the sum due for taxes; but he is eighty-one years of age, and cannot be expected to have a precise recollection of details, and he has no books. There is no reason to doubt his belief that he ‘considered the one account squared the other, ’ and does not ‘owe the pursuer anything.’ The petitioner urged that a re-examination should be allowed. That in certain circumstances is competent. (Dickson's Evid., supra, sec. 1619.) But there is no reason to suppose that the defender can tell more than he has done.”

The pursuer appealed to the Court of Session.

Argued for him—The reference by the Sheriff to Dickson on Evidence did not support his view. On the contrary, as there was no allegation of any agreement on the part of the pursuer to hold the claim of the defender as compensating his own, it was a direct authority to the contrary—Sec. 1646, ad fin. See also Erskine, iv. 2, 11, 13; 1 Bell's Comm. 351 (M'Laren's ed.), 333–4, (5th ed.), and cases quoted in More's Notes to Stair, 418; Hepburn v. Hepburn, Hume 417. To allow the defender to prove his counter claim in this way was to allow him to prove his own debt by his own oath— Learmonth v. Russell, M. 13, 201.

Argued for the defender—Where it was a course of transactions which was in question, the principle of Hepburn and the other cases did not apply. Besides, the circumstances of the case should be looked at, and if there was any doubt as to what the defender's oath imported, the presumption was against the pursuer, who must suffer for his neglect.

At advising—