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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Campbell v Arrott [1835] CA 13_557 (26 February 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0557.html Cite as: [1835] CA 13_557 |
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Page: 557↓
Subject_Triennial Prescription—Proof—Judicial Admission.—
1. Terms of judicial admission by a defender, which held not sufficient to elide the triennial prescription, And, 2. A judicial admission must be taken with its qualifications where it is founded on as eliding prescription.
In 1833, Alexander Campbell of Bedlay, writer in Glasgow, and assignee of the debts due to the late firm of Campbell and Barlas, writers there, raised action against Colin Arrott, merchant, Glasgow, for payment of £345, 19s. 5d., as the balance of a business account due to the firm. The chief part of the account was for business in an action in the Jury Court, originally raised in 1823 by Arrott, for putting down a nuisance near his property of Clyde Bank, and for recovering damages. The last item of the account was incurred in 1827.
Arrott pleaded payment and prescription, alleging the payment to have been made in the following manner:—In 1825, during the dependence of the above action, he sold Clyde Bank to Alexander Barlas, partner of the firm of Campbell and Barlas; after which, Arrott “had no longer any interest in the depending process, except to the extent of such damages as might be found due for loss of rent prior to the sale; he, nevertheless, agreed that the action before referred to should be carried on and concluded in his name, provided Mr Barlas would bear the one half of the whole expenses from first to last, he being entitled, in return, to one half of such damages as might be obtained, besides the full benefit of the verdict, in the event of the action being successful in interdicting and putting down the nuisance complained of. This was made known to Mr Barlas's partners, and the case was from that time carried on upon that footing.” In the action of damages, which went on in Arrott's name, a verdict for £5 of damages was obtained, with modified expenses.
Arrott farther alleged, that Barlas effected a loan on the property of Clyde Bank, in order to pay the price, and that the pursuer, who acted for the lender, had retained £100 of the price in his hands, which must now impute in extinction of the account. And, upon giving credit for this sum, and stating the accounts on the footing that one half was the proper debt of Barlas alone, it would appear that any sum due by Arrott was over paid. *
The pursuer stated, that no arrangement was made either with the company of Campbell and Barlas, or with his knowledge, in virtue of which the half, or any part, of the account in question was made the proper debt of Barlas, or of any person but the defender; and that the pursuer had never heard of such agreement till after the time when the whole account had been incurred, and when the firm of Campbell and Barlas had become insolvent. He denied having retained £100, as alleged, at the transaction of the loan.
In these circumstances, the pursuer pleaded, that the allegations of the defender, as to the mode in which he stated one half of the account to be extinguished, by substituting Barlas as the debtor, were incompatible
_________________ Footnote _________________
* The loan on Clyde Bank was effected in 1827, in the name of Arrott, who remained feudally invested in the subject. The pursuer was said to have been agent and cashier for the lender.
with the plea of prescription as to that part of the accounts incurred posterior to the sale of Clyde Bank to Barlas, in so far as they amounted to a denial that the debt had ever been contracted; and, therefore, they must be proved by the defender in common form. As to that part of the account, prior to the sale of Clyde Bank, the allegations were extrinsic, and equally required to be supported by proof, in order to rebut the claim, as its original constitution against the defender, was, to that extent, admitted. As to the allegation, that the pursuer had got possession of £100 in the course of transacting the loan, it was also extrinsic, and required to be proved in common form.
The defender answered, that the whole account was prescribed, and, if the pursuer was to found on his judicial admissions in the defences, he must take them with all their qualities, which necessarily imported payment. Independently of the judicial admissions, the pursuer had only the usual remedy of a reference to oath.
The Lord Ordinary “found that the account libelled on is prescribed, and found that that defence is not cut off by the admissions of the defender in the closed record, but allowed the pursuer to prove that the account is resting-owing, by the writ or oath of the defender.” *
The pursuer reclaimed.
_________________ Footnote _________________
* “ Note.—The defender pleads, that he was liable for only one half of the expenses of the action, in consequence of an agreement with Barlas; and if he had stopped there, it might be said that an agreement with Barlas, in a matter with which the company had no concern, could not be binding on them; but he adds, that this agreement was made known to the company, and that the action went on, on that footing, which must be held to mean that the company consented to take Barlas as their debtor for one half of the expenses. Further, he avers that Mr Campbell, on the part of Campbell and Barlas, retained £100 belonging to him, and which was raised on the security of his property, and placed it, or was bound to place it, to his credit. There is no admission, therefore, by the defender, of the subsistence of the debt, sufficient to elide the triennial prescription.”
The other Judges concurred.
The Court adhered.
Solicitors: J. Young, S.S.C.—J. Forrester, W. S.—Agents.
