An account being fitted, no proof, except by writ or oath, was allowed relative to the delivery of vouchers.
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The Lord Abercromby having sold to the Lord Newark the barony of St Ninians, there was a fitted account subscribed by them both, in anno 1647, containing the sums paid by Newark, and at the foot thereof concluding 37,000 merks to be due, but there is no mention made of the instructions in the account; the second article whereof bears, paid to Abercromby's creditor 30,000 merks; whereupon Abercromby alleges, That seeing the account bears not the delivery of the instructions, that Newark at least must produce the instructions of this article, which is general, for the bonds of these creditors are yet above Abercromby's head, and Newark makes use of some of them to exhaust the 37,000 merks bond at the foot of the account. It was answered for Newark, That after eighteen years time, that he was not obliged to count again; but the foot of the account being subscribed by the pursuer, bearing 37,000 merks to be only resting, was sufficient to exoner him, and the not mentioning of instructions delivered, cannot presume, or prove against him, that they are in his hand, else the account signifies nothing, and he must not only instruct this article, but all the rest; neither did he make use of any bonds to exhaust the foot of the account, but such only for which precepts were directed to him after the account.
The Lords found the defender not liable to count, or produce the instructions of any of the articles, unless it were proved by his oath, or writ, that the instructions were retained in his hand.
