Smart v Bargh
| Jurisdiction | Scotland |
| Judgment Date | 17 November 1948 |
| Date | 17 November 1948 |
| Docket Number | No. 8. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Sheriff of Lanarkshire.
Process—Defences—Alternative and inconsistent averments of fact—Competency.
In an action for declarator that she was the owner of a hut and its furnishings, the pursuer averred that she had purchased the property in question from the defender's deceased father, and in support of her claim she produced a receipt for the price and a holograph writing confirming the sale. She averred that both documents had been granted by the deceased. The defender's averments were to the effect that the signature on each document was forged and, alternatively, that, if the deceased had signed either or both of the documents, his signature had been impetrated by circumvention while he was in a facile condition.
Held that, in the circumstances of the action, substantial justice required that the defender should be permitted to put forward an alternative case, based on inconsistent averments; and proofallowed.
Observations as to the considerations which should influence the Court in deciding whether to allow such an alternative case to go to proof.
Dicta of Lord Benholme in London and Caledonian Marine Insurance Co. v. London and Edinburgh Shipping Co.UNK, (1867) 5 Macph. 982, at p. 985, approved.
Joan Smart brought an action against William Bargh in the Sheriff Court at Glasgow, concluding (first) for declarator that she was "the owner of a hut known as Hut No. 174 and which is situated at Carbeth Hill Camp, Strathblane, together with the whole household furnishings, fittings, outhouses and accessories therein contained," as enumerated in the crave of the initial writ, and (second) for payment of a sum of money alleged to be due by the defender.
The parties averred, inter alia:—(Cond. 2) "The defender's deceased father, William Bargh, resided in the pursuer's house at 52 Gilmour Street, Glasgow, for some years prior to his death, except when the deceased was resident at the hut known as Hut No. 174, Carbeth Hill Camp, Strathblane, or when the deceased was in hospital." (Ans. 2) "Admitted that deceased was resident from time to time at the hut known as Hut No. 174, Carbeth Hill Camp, Strathblane, for some years prior to his death and that he was occasionally in hospital and that he frequently resided with pursuer.Quoad ultra denied." (Cond. 3) "In or about May 1946 the deceased sold to the pursuer the said hut with the household furnishings, fittings, outhouses and accessories, for the sum of £100. … During the year prior to May 1946 the pursuer paid to the deceased the sum of £100. This sum was paid in varying amounts and at various times. … The whole sum paid in cash had been paid by May 1946, and the deceased granted to the pursuer the receipt, dated 21st May 1946, which is herewith produced. … There is also produced herewith a holograph document granted by the deceased confirming the sale of the said hut to the pursuer. …" (Ans. 3) "Denied. … Denied that pursuer paid deceased a sum of £100 or any sum. … The documents 7/1 and 7/2 of process are referred to for their terms beyond which no admission is made. … Averred that neither of said documents was signed by deceased and that the signatures purporting to be the signatures of deceased on both of said documents are forged. …Esto either or both of said documents 7/1 or 7/2 were signed by the deceased, his signature to said...
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