A defunct's account-book sustained against his heir, wherein he acknowledged that he had borrowed a certain sum, and mentioned, in distinct articles, the payment of several years' annualrents.
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Helen Purveyance pursues Agnes Cunningham, as heir to Adam Knight, to pay 500 merks borrowed by the defunct from the pursuer, and annualrents thereof since September 1673, and for instruction, produces the defunct's count-book gotten out of his heir's hands by exhibition. In which, upon several pages thereof, the defunct acknowledges the borrowing of the sum and the payment of annualrents. The defender alleged, That this probation was not sufficient; for, albeit libri rationum, merchants' count-books, orderly kept, may prove against the merchant, yet this book is not such, but a book of other affairs; and it were of dangerous consequence to sustain the probation of a liquid sum of 500 merks wherein bonds use to be adhibited, and not being in re mercatoria, to be proved this way; for though this sum had been once due, the defunct might have paid the same without taking a discharge, seeing he gave no bond, and might have forgotten it, or mentioned the payment in his private memoirs, it not being a formal, count-book. 2do, The same book bears payment of several particulars, and must prove the discharge as well as the charge. It was answered, That there being special confidence betwixt the parties, the defunct being the pursuer's good-brother, and the sum small, his count-book of all his affairs written with his own hand, authentic, and unsuspect, must prove against his heir. And the presumption of payment without discharge is of no moment, it being notour he died suddenly within a few weeks after the last post in his book, bearing a full account of the sum and annualrents.
The Lords sustained the probation circumstantiated as aforesaid, and found the book probative both for charge and discharge, and that annualrent being therein acknowledged to have been paid, they found annualrent due thereafter, and in time coming.
Fol. Dic. v. 2. p. 260. Stair, v. 2. p. 520.*** Dirleton reports this case:
1677; June 8.—The Lords found, upon the advising of a concluded cause, after debate in præsentia, in the case in question, that liber rationum, and a count-book of a merchant, containing an article of debt, due by him to the pursuer, was a sufficient probation in respect the said count-book was written with the merchant's own hand, and he was known to be a person of great honesty and exactness; and the article was so clear, that the time therein mentioned, he stated himself to be debtor in the said sum, all bygone annualrents being paid; and in another part and article of the said book, he did acknowledge that he had borrowed the said sum, and was special as to the time, and there was a great confidence and near relation betwixt him and the creditor; and therefore the Lords decided as said is, in respect of the said circumstances; but thought it hard, that count-books in Scotland, where there is not that exactness that is elsewhere in keeping books, should have that faith that is given to them elsewhere.
In præsentia.
Act. Mr Robert Stewart.Alt. Cunninghame.Clerk, Hay.
Dirleton, No 452. p. 220.
