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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Laren v. Bradly [1874] ScotLR 12_141 (11 December 1874) URL: http://www.bailii.org/scot/cases/ScotCS/1874/12SLR0141.html Cite as: [1874] SLR 12_141, [1874] ScotLR 12_141 |
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Page: 141↓
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A sued B for the balance of an account, partly for articles furnished to B, and partly for cash advanced to redeem goods which B had pledged. A averred that he had applied the sum paid to account by B for payment of the goods furnished, which were the items in the account of earliest date, and that the balance sued for was entirely due for cash advances.
Held (1) that A was entitled to apply the payment to the items first incurred; and (2) that the Statute of 1579, c. 83, did not apply.
This was an action brought by John Fisher M'Laren, writer in Glasgow, against Mrs Morrison or Lacy or Bradly, and her husband, Henry Bradly, for payment of £30, 5s. 6d., “being the balance of an account due by the defenders to the pursuer as assignee or indorsee of Messrs James Muirhead & Sons, jewellers in Glasgow, conform to account and assignation or indorsation thereon in favour of the pursuer.”
The pursuer averred that James Muirhead & Sons had sold goods and advanced cash to Mrs Bradly and done work for her prior to her marriage with Mr Bradly, and conform to account commencing 25th July and ending 4th November 1869. As shown by this account, the goods and work amounted to £175, 17s. 6d., and the cash advanced to £38, 6s. 0d. In payment of this debt James Muirhead & Sons admitted that they had received in cash and goods the sum of £184, which they had applied to payment of the goods and work in the first place, being the items in the account of the earliest date, thus leaving owing the sum of £30, 5s. 6d. sued for, being the balance of the said cash advances.
The defender admitted that James Muirhead & Sons had received goods and cash to the amount of £184, but otherwise denied the pursuer's averments.
The defenders pleaded, inter alia,—“(1) No title to sue, the assignation or mandate founded on not being stamped conform to law. (2) Prescription. (3) The pursuer's averments can only be proved by writ or oath.”
The Lord Ordinary (
Mackenzie ) pronounced this interlocutor:—“ Edinburgh, 30 th October 1874.—The Lord Ordinary having heard counsel for the parties, and considered the Closed Record and process, repels the First Plea in Law for the defenders: Finds that the provisions of the Statute 1579, c. 83, apply to the furnishings of goods and to the work charged for in the account libelled on: Quoad ultra allows the parties a proof of their respective averments in terms of ‘The Evidence (Scotland) Act 1866,’ and appoints the proof to be led before the Lord Ordinary on a day to be afterwards fixed.” The pursuer appealed.
At advising—
The account consists of a variety of items, partly for goods furnished and partly for cash advanced.
In the first article of the condescendence the pursuer says—“The defenders, the said Henry Bradly and Mrs Annie Camphell Morrison, or Lacy, or Bradly, are due and owing to the pursuer as assignee or indorsee of Messrs James Muirhead & Sons, watchmakers and jewellers in Glasgow, the sum of £30, 5s. 6d., being the balance of an account for goods sold to and for work done by them for the said Mrs Annie Campbell Morrison, or Lacy, or Bradly, and for cash advanced for and on her account, all prior to her marriage with the said Henry Bradly, and conform to account commencing 25th June 1869, and ending 4th November 1869, having thereon stamped draft or order of payment in favour of the pursuer, or order on demand, dated 27th March 1874. The goods and work amount, as shown by said account, to £175, 19s. 6d., and the cash advanced to £38, 6s., and these amount together to £214, 5s. 6d.”
In article 3 of the condescendence it is alleged—“The said James Muirhead & Sons received in cash and in goods from or on account of the female defender altogether the sum of £184, as specified in the items to credit appended to said account; and applying these credit items towards payment of the goods and work in the first place, there is left due and owing the sum of £30, 5s. 6d. of the said cash advances, with interest thereon from 31st December 1869, at the rate of five per centum per annum till payment.”
The answer to that is—“Admitted that Muirhead & Sons received the cash and goods here mentioned.”
The question is whether the statute of 1579 applies to the claim as stated. I am of opinion that it does not. The items for cash transactions do
Page: 142↓
I do not think there is any doubt that when payment was made the pursuers were entitled to apply it to the items first incurred. This, I think, was decided in the case of Lang v. Brown, 2d Dec. 1859, 22 D. 113;
I am therefore of opinion that the interlocutor of the Lord Ordinary should be recalled, and that the three first pleas in law for the defender should be repelled.
The other Judges concurred.
The Court pronounced the following interlocutor:—
“Recal the interlocutor reclaimed against: Repel the first, second, and third pleas in law for the defenders, and remit to the Lord Ordinary to allow the pursuer a proof in common form.”
Counsel for Pursuer— V. Campbell. Agent— John Latta, S.S.C.
Counsel for the Defenders— Rhind. Agent— James Y. Pullar, S.S.C.
