Scottish Court of Session Decisions

Subject_1Proof
Subject_2Writ or Oath
Subject_3Loan. Headnote:

This was an action of multiplepoinding raised at the instance of Mrs Mackay or Murray, as executrix-nominate of her husband the Rev. James Murray, minister of Reay, in Sutherland, under a mutual disposition and settlement executed by the spouses. The defenders who lodged claims were Mrs Bishop (who under the said deed was to succeed to the fee of their whole heritable and moveable estate on the wife's death) and the trustees of a marriage-contract executed by the spouses in 1860. In this marriage-contract the pursuer conveyed to the trustees, inter alia, her whole right to the proceeds of certain farms in which she had a joint right with her sister Miss Johanna Mackay. The estate so conveyed was to be held in trust for the sole use of the pursuer, and was to be exclusive of her husband's jus mariti. In 1865 Miss Mackay, the pursuer's sister, took a lease of the farms in her own name, and granted a bond for £1000 in favour of the marriage-contract trustees, in part payment of the value of the pursuer's share in the stock, &c., which had been valued at £1212, 17s. 7d. The Rev. Mr Murray being at that time in poor circumstances, applied to the trustees to be allowed to receive payment from Miss Mackay of the balance of the said sum payable by her. The trustees consented, and Miss Mackay accordingly paid over the sum of £210 to him in three sums of £180, £50, and £10, for which they received three acknowledgments, the first being signed by the two spouses, the second and third only by Mrs Murray.

The marriage-contract trustees in demanding repayment of the £210 pleaded that they had advanced the money to the Rev. James Murray on loan and on condition of repayment. Mrs Bishop claimed that the executry estate should suffer no such diminution.

The Lord Ordinary ( Adam) found that the trustees had failed to prove by competent evidence the alleged loan, and repelled their claim accordingly.

On their presenting a reclaiming-note the Lords adhered to the Lord Ordinary's interlocutor.