M'Donald v. Cheyne's Trustees

On the 28th February 1860 an action of count, reckoning, and payment was raised at the instance of Mrs Francis Cheyne of Lismore, relict of the deceased James Cheyne of Kilmaron, against Donald M'Donald, Soroba, near Oban, concluding against him to exhibit an account of his intromissions as factor for the pursuer, or to make payment of £500 or such other sum as should be found to be the balance of his intromissions. Decree in absence was on 20th May pronounced against the defender in terms of the second alternative conclusion of the summons.

The pursuer of this action had in 1857 acquired by purchase the estate of Kilchiaran in the island of Lismore, in Argyllshire, which had been for some years in the possession of the trustees of her late husband Mr James Cheyne.

Against this report objections were lodged by both parties, and before further answer thereon proof was allowed by Lord Mure. After various delays, extending over a period of years, the cause came to depend before Lord Fraser, who on 9th July 1881 granted a commission to examine the suspender M'Donald, who was residing in Queensland. He was examined before the commission. The more important parts of his evidence thus obtained are referred to in the opinion of the Lord President.

With reference to the accountant's report, he indicated in his notes what in his opinion the respondent must prove before she could establish her claim against the suspender. It is unnecessary to go into the details of this report, because none of the material facts averred by the respondent appear to me to have been established. I am therefore for recalling this interlocutor and sustaining the reasons of suspension.

“Recall the interlocutor; sustain the reasons of suspension; suspend the decree and charge complained of, and decern; reserving all questions as to the effect of the payments alleged to have been made by the suspender to the respondents on or about 9th October 1860, amounting to £270: Find the respondents liable in expenses,” &c.