Scottish Court of Session Decisions

The pursuers in this case were the trustees of the late William Duguid, farmer, Udny, Aberdeenshire, who died on the 29th November 1875, and the defender was Alexander Urquhart, farmer, Lyne of Skene, in the same county. The question related to a bill of exchange for £52, Is., accepted by the defender along with a Mrs Rae in favour of Duguid. The bill was dated “Ardmore, 1st April 1870,” and admittedly fell under the sexennial prescription. The pursuers, however, founded on the following writ of the defender, being a letter by him to W. Giles, one of the pursuers, as establishing that the debt was resting-owing:—“ Lyne of Linton, 13 th May 1878.

“Dear Sir,—Mrs Rae got your letter regarding the Ardmore money. I would ask you for a favour to let it lie with us just now. I am quite willing to pay interest for it, as I know off a farm that will be to let between this and the next term, and I am to get the first offer of it, and I cannot get money for my crop untill the fiars are struck in March. I had a farm taken (the end of a lease), and the factor satisfied with me for tenant. Then the outgoing tenant and the factor quarreled about bad farming, and he must finish his lease himself. That is the reason how I am selling off. It is only the cattle and horses and some of the farming implements that is to be sold. Mis Duguid has been written about it. I trust you

Page: 702↓

will not ask it at this time, as I have told you the disappointment I got about the farm.”

The letter to which the above was an answer was a letter by Giles, not to Urquhart, but to Mrs Rae, the co-obligant in the bill. It was in these terms:—“ Udny Station, 10 th May 1878.

“Dear Madam,—Mr Rennie, Allathan, Mr Duguid, Mosshead, and I, as executors on the late Mr Duguid's estate at Ardmore, being very anxious to get finally settled with the Ardmore family, and having seen that the sale at Lyne of Linton is to be on 16th inst., I was requested to write to you to say that we hope you will then be able to pay off the amount due between you and Mr Urquhart to Mr Duguid, so that we may be clear of our executorship. Trusting to hear from you in course of post.”

These letters were not set forth in the condescendence, but were recovered subsequently to the closing of the record. The only debt which the defender admitted to be due was one for £3.

The Sheriff-Substitute ( Dove Wilson) found that the pursuers had proved the debt by the defender's writ, and therefore decerned against him, adding this note—

Note.—The debt seems to me to be sufficiently proved by the letter of 13th May 1878. That letter is dated after the expiry of the prescriptive period, and therefore will establish the debt, provided that it was written with reference to the bill.

The question whether it would be competent to connect the letter with the bill by parole evidence would be one of difficulty, but I do not think it necessary to consider that question, as the letter when carefully read must be seen to apply to the bill and to nothing else. It refers, ex facie, to a debt due by Mrs Rae and the defender. These are the co-obligants on the bill. The money is spoken of as the ‘Ardmore’ money, and the letter says that a relative letter had been written about it to Mrs Duguid. Ardmore was where the deceased holder of the bill resided, and Mrs Duguid is his widow.

Then the debt is spoken of as a considerable sum. The letter proposes to ‘let it lie’ for a longer period, and to pay interest on it, and the great hardship to the writer of having to pay it up at once is pointed out. The letter applies as plainly as can be to the existence of a considerable debt by way of loan from the deceased Mr Duguid of Ardmore to Mrs Rae and the defender.

To what can this possibly apply except the bill? The defender's suggestion that it applies to a small balance of £3 is absurd, and nothing else is suggested. Nothing is left but the bill to which it can apply.

It is said that the letter is not sufficient proof, because it does not refer expressly to the bill, and does not mention any specific sum. It is not, however, necessary that it should. The Prescription Act merely says that the debt is to be proved by writ. In the absence of authority to the contrary, this must mean any writ which is sufficient to bring home a conviction that the debt in the bill is still due. (See Wood v. Howden, February 7, 1843, 5 D. 507, and Dickson on Evidence, p. 314, section 448.)”

The Sheriff ( Guthrle Smith) adhered, adding the following note.—

“ Note.—It has been laid down that a plea of prescription may be overcome by letters which are not in themselves clear and explicit, but which when read in connection with the correspondence of which they form a part are intelligible. It is accordingly competent not only to refer to the writ of the debtor, but to explain that writ by the letter of his creditor to which it was an answer. ( Fiske v. Walpole, 22 D. 1488.) This appears to the Sheriff to be the answer to the defender's argument—that in the writing founded on the debt claimed is insufficiently identified. No one can read the correspondence without seeing that there never was any question between the parties with respect to any debt but the one now sued for. It is not as if they had had extensive bill transactions. For aught that the defender is able to allege to the contrary, there never was any bill between them but the one produced; and when we find the defender speaking of it as the ‘Ardmore money,’ pleading his inability to pay it, and craving further time, there can be very little doubt of what he meant.’

The defender appealed, and argued—Assuming that it was competent to refer to the letter to Mrs Rae, which was doubtful— Blair v. Horn, January 17, 1859, 21 D. 1004—especially as that letter was to Mrs Rae and not to the defender, nevertheless in the present case it was not the irresistible conclusion that the two letters referred to the bill in question. The word “bill” was not once mentioned, which was remarkable if the debt referred to in the letters was contained in a bill, seeing that Mr Giles was a bank agent, and yet he used every phrase but “bill.” In Wood v. Howden, February 7, 1843, 5 D. 507, on the other hand, the amount of interest acknowledged exactly corresponded to the interest due on the bill. Then in that case the writ founded on was set forth in the condescendence; here that was not the case, and consequently the defender was at a disadvantage, having no opportunity of explanation. [ Lord President—Then do you want to give another explanation?] No; the onus was on the pursuers to show that the writ could not possibly refer to anything but the bill, and they had failed to do so here.

Argued for respondents—It was competent to refer to the letters to which defender's writ was an answer— Wood v. Howden, supra; Stevenson v. Ryle, May 31, 1849, 11 D. 1086, and Feb. 15, 1850, 12 D. 673; Cullen v. Smeal, July 12, 1853, 15 D. 868; M'Gregor v. M'Gregor, June 27, 1860, 22 D. 1264; Fiske v. Walpole, June 19, 1860, 22 D. 1488. And taking the two letters together, the conclusion was a necessary one, that the debt referred to in the letters was the debt in the bill. The money was called the “Ardmore money;” the co-debtors were the defender and Mrs Urquhart, and no other debt had been suggested which realised these conditions. The only debt which the defender had condescended on was a small one of £3 due by himself only. [ Lord President—Yes; but you do not condescend on this letter of his.] The record might competently be opened up, but the onus of proving that the debt in the letter referred to another debt was on the defender—Dickson on Evidence, sec. 449.

At advising—