Scottish Court of Session Decisions

Mrs Francis Batchelor and others, who as trustees of the late Francis Batchelor continued his business as cattle-dealer near Dundee, sued James Honeyman, farmer, Hillhouses, Dundee, for £81, 9s. 6d., “being the balance due by him on an account” produced.

The pursuers averred—“The defender is tenant of the farm of Hillhouses, near Dundee, and on the various dates specified in the statement or account-current, a copy of which is annexed hereto, the defender purchased from the pursuers, or from the said Francis Batchelor, the cows and potatoes at the prices mentioned in the said account. These prices amount, in cumulo, to the sum of £529, 10s., to account of which sum the defender has paid or accounted for to the said Francis Batchelor, or to the said trustees, various sums on the dates and of the amounts also set forth in the said account-current. These payments to account amount in all to £448, 0s. 6d., which being deducted from the said sum of £529, 10s., leaves a balance due to the pursuers of £81, 9s. 6d.”

The defender averred—“Admitted that the defender is the tenant of the farm of Hillhouses, near Dundee, and that the defender had various transactions with the said deceased Francis Batchelor, but these have all been closed and settled. Quoad ultra denied.”

The account was as follows:—

1877. Sept. 1. 2 Cows,				£55	0	0
Dec. 1. 2 Cows.				55	0	0
Dec. Balance on Cow,				1	10	0
Dec. 1 Cow,				21	5	0
Dec. Potatoes,				4	0	0
1878. Oct. 4. Off for Dung and Cash,	£103	1	6
Off for Cow,	1	6	6
	£104	8	0	£136	15	0
1879. Aug. 9. 1 Cow,				24	0	0
Aug. 26. 2 Cows,				38	10	0
Aug. 1 Cow,				17	0	0
Sept. 2. 1 Cow,				23	10	0
Dec. 9. By Cash,	20	0	0
1881.
Jan. By Cash,	20	0	0
May 3. 2 Cows,				34	0	0
Aug. 27. 81 Loads Dung,	30	7	6
1882.
Jan. 20. 1 Cow,				24	0	0
Jan. 20. By Cash,	20	0	0
Nov. 28. 1 Cow,				23	0	0
Dec. 26. 1 Cow,				24	15	0
1883.
Mar. 28.2 Cows,				35	10	0
Mar. 28. 70 loads Dung @ 7/6,	26	5	0
June 11. By one Calf,	1	10	0
Sept. 18. By Cash,	20	0	0
1884.
April 1. By Cash,	20	0	0
May 8. 1 Cow,.				16	10	0
By Cash,	6	0	0
Sept. 9. 1 Cow,				23	0	0
Dec. 9. By Cash, ..	23	0	0
Dec. 9. 1 Cow,.				21	0	0
1885.
Feb. 10 1 Cow,.				19	0	0
April 7. 1 Cow,.				17	0	0
April 11. 1 Cow,	20	10	0
June 2. 1 Cow,				17	0	0
June 9. By Cash, ..	17	0	0
Oct. 20. By Bill,	21	0	0
Nov. 21. 1 Cow,	18	0	0
1886.
Jan. 12. By Cash,	18	0	0
April 6. By Bill,	20	0	0
July 27. 1 Cow,				17	0	0
Sept. 6. By Bill,	20	0	0
June 1. By Bill,	20	0	0
Oct. 1. By Bill,	20	0	0
	£448	0	6	529	10	0
			448	0	6
			Balance due,	£81	9	6

The defender pleaded—“(2) Prescription.”

The Sheriff-Substitute (J. C. Smith) pronounced as follows:—“Sustains the defender's plea of prescription: Finds that the pursuers are entitled to prove their averments only by the writ or oath of the defender: Allows them, primo loco, a proof by writ, and the defender a conjunct probation by writ, &c.

“ Note.—I have had difficulty in sustaining the plea of prescription because of the case of M'Kinlay v. Wilson, November 18, 1885, 13 R. 210, and because of certain alleged broad dicta of the judges who decided it, to the effect that prescription cannot apply to accounts-current. But it seems to me that those unlimited dicta are much broader than the decision, and that if given full effect to they would exclude prescription wherever there are cross accounts, because cross accounts of sales say between a draper and a grocer can always be cast into the form of an account-current. But it seems to me the essential and decisive ground of that decision was that it was not an account solely of sales and purchases, but was also an account of sales on commission or as joint adventures. It was therefore not purely an account of buying and selling,

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and its true character required a proof to disclose it. But here the account libelled and the pursuer's averments regarding it disclose an account of buying and selling and of nothing else. Unless therefore prescription be to be restricted to unilateral accounts of buying and selling, I see no sound or intelligible principle upon which I can hold that it does not apply to the present case as it is stated on the face of the account and of the record.”

The Sheriff ( Comrie Thomson) recalled this interlocutor “in so far as it limits the pursuer's proof to the writ or oath of the defender; quoad ultra adheres to the said interlocutor, allows the parties a proof and to the pursuer a conjunct probation.”

The defender appealed, and argued—The Sheriff-Substitute was right; this was not a proper account-current between merchants. The pursuers and the late Francis Batchelor had sold articles to the defender, and the defender in settling had set off certain articles supplied by him, but these amounted only to cross entries, and did not warrant the application of M'Kinlay v. Wilson, 13 R. 210.

Argued for the respondents—1. They were entitled to inquiry. Prescription did not apply to proper accounts-current between merchants— M'Kinlay v. Wilson, supra. The question was whether this was an account-current. It was stated as such. The defender admitted that transactions had taken place. Ex facie it was not an account for goods sold and delivered by the pursuer; it showed a course of dealing between the parties. The sales by the defender amounted to £182, 13s.—a considerable proportion of the account. The Court might therefore regard it as an account-current. 2. If not, at least there should be proof before answer as to the course of dealing in order to ascertain whether it had been properly stated as an account-current. If it were shown that the transactions were treated not as separate but as one, that the items had been set against each other, that a balance had been struck, with periodical payments, the defender's plea of prescription could not be sustained.

At advising—