Scottish Court of Session Decisions

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

Mr William Aikman
v.
James Tarbat

Date: 29 July 1680

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Mr William Aikman pursues James Tarbat, as representing his father, for payment of the balance of an account betwixt the pursuer's father and the defender's, signed by both.

The defender alleged Absolvitor; because to the count subscribed there is subjoined a new count, all written with the pursuer's father's hand, by which the pursuer's father is stated debtor, as by note, in £1000, to the defender's father: and therefore craves to be assoilyied from the count, and to pay him the balance of the last count; which though not subscribed, yet being the handwrit of the pursuer's father, produced by himself, it is probative in the same way as notes of receipt written by creditors' hands upon their principal bond; which are always allowed in part payment of the bonds, though not subscribed, though bonds be more solemn writs than counts: and cannot be presumed written spe numerandæ pecuniæ, or upon some design which did not follow; being immediately subjoined upon the same page with the principal subscribed account.

The pursuer answered, That such unsubscribed notes upon accounts cannot prove. And, though it could, the balance of the unsubscribed account bearing, (as per note,) hath no effect, unless the ticket were produced: for, wherever there is a subscribed count delivered, which used to be retired upon satisfaction, it is ever presumed retired and satisfied, unless it be produced; and therefore accounts or missive letters relative to bonds or tickets, have no effect without the bonds or tickets; for no man can remember what letter he writes.

The Lords found the unsubscribed account subjoined to the account on the same page, and written by the accountant's hand, probative to take away the subscribed account; but not to burden the accountant with the balance of the unsubscribed account, seeing the balance bears, as per note given to the creditor of the balance, unless that note be produced, which is otherways presumed satisfied and paid.

Vol. II, Page 793.