GEORGE NAPIER v Miss MARGARET BALFOUR (Court of Session)

Mr Napier brought an action against Miss Balfour, as representing her mother, Mrs Dr Balfour, for L.52, 6s., being the balance or third part of an account, with interest at 4 per cent., incurred in 1806 in completing the titles of Mrs Balfour and other heirs-portioners of Mr Donald M'Gilchrist of Northbar.

Prescription was pleaded in defence, and there was a reference to the oath of the defender that the debt was resting owing. The Lord Ordinary held the constitution of the debt and resting owing to be proved, for the reasons stated in the following interlocutor and note:

On another point I am for altering, as I think interest is not due. The pursuer was not entitled to keep back this account till 1834. I do not know that it is fully established that interest on writers' accounts is due, especially under such circumstances. Here we have an illustration of the mischief that may be done. There is an account of L.76, with L.79 of interest charged on it. It is so far well for the pursuer that two portions of it have been paid with interest.

Lord Glenlee .—Upon the whole I agree as to the proof of resting owing. If the principal sum be due, interest follows. She has had the benefit of the interest by not paying the debt. She will not be more out of pocket than if she had paid it at the time. But as to interest on this particular account, I would make a distinction betwixt interest on professional charges and interest on outlay.

Lord Meadowbank . — I think, upon a fair interpretation of the oath, that the debt is due; but I am against allowing interest. This would be holding out a premium to parties to hold back accounts.