2 Dunl 6
| Jurisdiction | Scotland |
| Judgment Date | 12 November 1839 |
| Docket Number | No. 2 |
| Date | 12 November 1839 |
| Year | 1839 |
| Court | Court of Session (Inner House - Second Division) |
Ld. Moncreiff. T.
Prescription Triennial—Account.—
DAVID ROSS, wright at Sandhouse, in the county of Ayr, raised action in June 1838 against Mrs Isobel Guthrie for payment of an account for wright-work and furnishings, alleged to be owing by her husband, whom Mrs Guthrie represented, at the time of his death in February 1834, and to be current at the date of that event, and of a small account incurred to Ross by Mrs Guthrie immediately subsequent to her husband's death.
In defence, Mrs Guthrie denied that any part of the accounts libelled on was due or resting-owing; and she averred that she had been confirmed executrix to her husband, and had more than exhausted his estate in payment of his debts long before any notice of the present claim had been given. She pleaded, 1st, the triennial prescription; and 2dly, that having, as executrix, exhausted the estate without interpellation by the pursuer, he was not now entitled to any decree against her.
Ross thereafter made a reference to the oath of Mrs Guthrie, whether the accounts in question were resting-owing, when she deponed as follows:—‘That her husband died upon the 25th day of January 1834 years: That she knows the pursuer, who lives about one mile from Turnberry Lodge: That the pursuer occasionally wrought for her deceased husband: That she knows the pursuer did a part of the wright-work necessary on the farm for some years before her husband's death, but she cannot say he did the whole work, or the names of the persons who so wrought. Interrogated, If the pursuer was the only person who wrought the wright-work on the farm of Turnberry from the year 1827? Depones, That the pursuer did part of the wright-work from that period, but she cannot say he did the whole: That the deponent's late husband got accounts occasionally rendered from the pursuer, but she cannot say whether they were regularly rendered or not. Depones, That after the deponent's husband's death, the pursuer did not render an account as due to him. Interrogated, Whether the defender did not on one occasion, shortly after her husband's death, bring forward the accounts now sought to be recovered, in presence of her father and the pursuer, with a view to a settlement? Depones, That she has not the least recollection of doing so. Depones, That she never authorized any person to call upon the pursuer for an adjustment of the account sued for. Depones, That her husband, before his death, told her that there was nothing due to the pursuer by him, as there were money and produce given equal to his work. Depones, That she paid no part of the account sued for after her husband's death, the same having been all paid previous to that event: That the deponent was present when her late husband gave the pursuer money and produce from the farm: That she cannot say she was present when any final settlement took place, and it does not consist with her knowledge that any settlement took place: That a short time before her husband's death, the pursuer sent a letter to him for the loan of £2, and that this sum would go to next year's account, and which £2 the deponent got from her husband, and gave it to the pursuer. Depones, That it consists with her knowledge, and what her husband told her, that no part of the account sued for is owing the pursuer, as he got money and produce equal to his work, but she has no note of these furnishings. Depones, That the pursuer wrought to the...
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