Scottish Court of Session Decisions

This action of multiplepoinding was raised in the Sheriff Court at Banff by the Rev. J. R. Leslie and others, trustees of the deceased John Farquhar, for the purpose of distributing the balance of the moveable estate belonging to the deceased, which remained in their hands after paying all debts and legacies, with the exception of a legacy of £100 left by the truster to his brother George Farquhar. One claimant in the action was George Farquhar, who made a claim against the estate for £104, 11s. for services rendered to the deceased conform to account produced, and another claim for £100, being cash deposited with him for which the deceased had given an unstamped promissory-note. He refused to accept payment of the legacy until these claims were admitted and paid. The other claimant was Jessie Farquhar, the daughter of the deceased, who was the residuary legatee. She pleaded that the account of £104, 11s. for services rendered was prescribed.

On 4th February 1885 the Sheriff-Substitute (Scott-Monobieff) pronounced an interlocutor holding the claimants confessed on the fund in medio, and exonering the pursuers on consignation of the balance in their hands.

On 15th June the Sheriff-Substitute pronounced an interlocutor by which he found that the claimant George Farquhar no longer insisted in his claim so far as founded on the promissory-note, and allowed George Farquhar a proof of his averments relating to the account. Jessie Farquhar, the other claimant, appealed to the Court of Session, and the Court on 16th July 1885 pronounced this interlocutor:—“The Lords having heard counsel for the parties on the appeal of the claimant Jessie Farquhar against the interlocutor of the Sheriff-Substitute of 15th June 1885, recal the said interlocutor, except in so far it disposes of the claim on the unstamped promissory-note; quoad ultra sustain the plea founded on the triennial prescription, and remit the cause to the Sheriff to allow the claimant George Farquhar a proof by the oath of party of the constitution and existence of the debt he claims.”

George Farquhar then lodged a minute of reference by which he referred the constitution and existence of the debt to the oath of John Farquhar's trustees and executors.

The Sheriff-Substitute on 28th October pronounced this interlocutor:—“Having heard parties' procurators upon the minute of reference lodged by the claimant George Farquhar, refuses to sustain said minute: Finds that the party by whose oath the claimant, the said George Farquhar, has been allowed a proof in terms of the interlocutor of the First Division of the Court of Session, of date the 16th day of July 1885, is Jessie Farquhar, the other claimant, and allows the said George Farquhar to lodge a minute of reference to her oath, if so advised, within ten days from this date: Further, on this question grants leave to appeal.

“ Note.—At present I have simply to give effect to the interlocutor of the Supreme Court which allows George Farquhar proof by the oath of party. Unfortunately the party is not named, and a lengthy debate has been the consequence of this omission. But I cannot doubt that by this expression is meant Jessie Farquhar, who is the party taking the plea of prescription, and maintaining that this account of which George Farquhar seeks payment is not due. It is true that the trustees and executors are the proper representatives of the deceased John Farquhar, the alleged debtor, and it seems to me that they were the parties who ought to have determined whether this account was due or not, and either paid it or resisted payment accordingly. But it is too late now to revive a plea which would strike at the competency of this action of multiplepoinding. The trustees have been allowed to lodge the funds and retire, leaving this question in dispute to be fought out between the two claimants.”

On appeal the Sheriff sisted process to enable the claimant George Farquhar to constitute his debt.

Page: 408↓

The claimant Jessie Farquhar then appealed to the Court of Session, and argued that the Sheriff-Substitute had taken the proper course. The respondent admitted that he could not maintain the Sheriff's judgment, but argued that the reference should be to the oath of the trustees. The party to whose oath the question should be referred was the debtor in the obligation. There was no case in which a reference had been sustained to the oath of a person who was not the debtor or the representatives of the debtor— Cullen v. Smeal, July 12, 1853, 15 D. 868, 882; Young, Potter, & Company v. Playfair, 1802, M. 12,486. His opponents were the trustees. [ Lord President—No. They were. But you have allowed them to be exonered.] Besides, the oath of Jessie Farquhar would be useless, as she knew nothing about the debt. [ Lord Shand—Quite so. But reference to oath is a privilege, and if the debtor is dead it very often is useless.]

The case was continued to allow the respondent to lodge a minute of reference to the oath of Jessie Farquhar if so advised. A minute of reference to her oath was lodged, and the case was then advised.