Scottish Court of Session Decisions

The late James Livingstone, grocer in Newburgh, was twice married; his first wife died in January 1810, leaving the pursuer Mrs Menzies, and a son, who died in minority. Livingstone died in 1822, leaving a second family. The children by the first marriage received no share, in right of their mother, of the goods in communion between their parents.

In 1829, Mrs Menzies raised an action of accounting against her brother consanguinean, James Livingstone, junior, who had intromitted with his father's funds and effects, concluding inter alia for payment of her share of the goods in communion as at the date of her mother's death. The Lord Ordinary remitted to an accountant (Mr H. G. Watson) “to investigate the state of the affairs of the deceased James Livingstone” at the period in question, and to report thereon.

After various procedure, the chief difficulty came to be, how the value of Livingstone's stock in trade, in regard to which the evidence before the accountant was defective, should be ascertained. It appeared that during the three years prior to 15th January, 1800, Livingstone's sales (so far as entered in his books) amounted, on an average, to £328 each year; that he retailed groceries of all kinds, including various hardwares, grass-seeds, wine, and porter; that he got his groceries occasionally direct from London, and also from Leith and Dundee; that his book customers were a few of the neighbouring proprietors, but mostly farmers and artisans, not many labourers dealing with him on credit, so as to leave accounts in his ledger; and that he had a great run of business. These data, together with an abstract of the amount of different classes of goods sold by Livingstone, and an account of goods which came into his hands during the above period, so far as they could be ascertained, were laid by the accountant before two tradesmen (one a grocer in Midcalder, the other a grocer in Edinburgh), in order that they might give a guess or moderate estimate of the probable value of the stock in such a business at the date in question, keeping in view that the ready money sales were not included in the above sum of £328. Upon the data submitted to them; both tradesmen concurred in estimating Livingstone's stock in trade to amount to “about £350,” stating “that a grocer in any large town could have carried on trade to the same extent with a far less stock than a person in such a place as Newburgh, being far from market.”

In order to ascertain as nearly as possible the value of the furniture in the party's house at the date in question, the accountant in the same way laid before an auctioneer a memorandum as to the size of the house, &c., who made an estimate accordingly. The accountant thereafter gave in his report, in which, with reference to the stock in trade and furniture, he adopted the values as found in the manner above mentioned, viz. £350 for the stock in trade, and £26 for the furniture. It was objected by the defender to the principle upon which he proceeded in so doing, that it was beyond the power of an accountant who had received a special remit from the Court, to delegate his power, as had been substantially done in the present case, to other referees; while it was contended by the pursuer, that the accountant was entitled to get at the probable value of the stock in the best way he could under the circumstances, and to have recourse, as in any other case of a remit, to the assistance of persons of skill.

The Lord Ordinary, with reference to the matter now in question, pronounced as follows:—“Approves of the principle of the report, so far as a fair and reasonable endeavour is thereby made to attach a probable value to the stock of goods on hand at the dissolution of James Livingstone's first marriage, and to the furniture of his house at that time: But finds, in regard to the stock of goods, that as the data on which the estimate is made are in their nature uncertain and conjectural, a considerable abatement ought to be made from the principal sum reported on that account: Finds that a farther abatement ought to be made in consideration that the value of such goods could not be realized for some time, or otherwise that the currency of interest ought to be postponed; therefore restricts the sum reported as the value of the stock of goods to the sum of £250; finds that the value of the furniture appears with reference to the proof to be very moderately taken at £26.” ^*

On a reclaiming note by the defender in regard to the above and other objections to the report,

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^* “ Note.—There is no doubt that from the nature of the case there must be uncertainty to some extent in the clearing of such an accounting; the defender complains of the delay in making the claim. But he forgets that it was the duty of James Livingstone to have made up distinct state of accounts at the time of his wife's death, and at all events, to have done so in reference to that date when he made his settlement. The pursuer was necessarily left in great difficulty. The means of estimate taken by the accountant do not appear to be unreasonable in the absence of the means which should have been preserved by the proper party. But as they are necessarily of an uncertain character, depending on opinion, the Lord Ordinary has thought it right to make a considerable deduction on that account, and the time necessary for realizing the value, from the sum reported as the value of the stock of goods.”