Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Thomas Wilson
v.
Geiles Ferguson and Her Spouse

Date: 13 November 1677

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Thomas Wilson pursues Geiles Ferguson, for payment of an account of ale and beer furnished to her by the space of six years; and also her husband, for his interest.

The defender alleged, That the libel was only probable scripto vel juramento, by the Act of Parliament declaring all counts to be so probable after three years; and so no article of this account can be sustained, it being three years preceding, to be proven by witnesses.

It was answered, That the Act of Parliament allows counts to be proven by witnesses, being pursued within three years; which three must be accounted from the last article of the count; and so must not severally relate to every article, but to the account, consisting of more articles.

It was replied, That though the currencies of counts have been found relevant in merchants' accounts, that have books where discharges use to be taken, yet it ought not to be extended to vintners; otherwise all people who have been so furnished may be put to count, though for twenty years past. And there was a practick produced out of Durie, who, in a pursuit by a vintner against a taverner, who had passed from his service unquarrelled; the Lords would not sustain the process to be proven by witnesses, that the ale was tapped by the servant, it being presumed that the vintner received the money by daily and weekly accounts; unless it were proven, by the servant's oath, that the same was resting.

The pursuer duplied, That if this parallel hold, witnesses will be excluded from proving one year's furnishing, as was in that servant's case; which cannot be drawn to the case of another person, where there is no presumption of payment. And the constant decisions of the Lords have sustained a count current probable by witnesses, though it lasted for many more than three years, if pursued within three years after the ending of the account; and that not only to merchants, but to apothecaries, tailors, &c. and writers; upon which all parties have rested secure. It is true, the interval amongst the articles of a merchant's count may be larger than a vintner's count, which is ordinarily weekly, and a merchant's count but yearly furnishing; but, so long as the account is current, it is but one count.

The Lords sustained the account to be proven by witnesses, being pursued within three years after the ending of the count-current.

Vol. II, Page 557.