Presumption that articles claimed have been accounted upon.
Seton v. Cockburn
Date: 31 January 1684 Case No. No 44.
By a fitted account, prior accounts are held to have been settled.
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The compt and reckoning between Sir Walter Seton and Sir James Cockburn is reported by Pitmedden; and the Lords assoilzie Sir James conform to his articles of discharge, unless Sir Walter offer to prove, by Sir James's oath, that the instructions are in his own hands, which he is ready to depone he gave up at the time of the compting; and ordain Sir James to compt for the deleted articles.
Fol. Dic. v. 2. p. 135. Fountainhall, v. 1. p. 265.*** Sir P. Home reports this case:
Sir Walter Seton and Sir James Cockburn being sharers together in a tack of the customs, Sir Walter pursues Sir James for his intromissions with the same, amounting to considerable sums. Alleged for the defender, That he had already counted, in so far as he having given in an account to the pursuer of his intromissions, and subscribed the same, by which there was a certain balance due by the defender, which was carried to a second account, and the balance of that carried to a third account, which being fitted and closed by both parties, is equivalent to a discharge, seeing by the custom of merchants, the fitting and closing of the last account wherein the balance of former accounts is stated, is understood to be a closing and fitting of all accounts; and when the last account was fitted, all the instructions was given up. Answered, That the first account given in by the defender, albeit signed by him, yet it cannot exoner him, unless it had been likewise signed by the pursuer; and albeit the balance of several accounts be brought to the last account which is signed by both parties, yet that cannot import an exoneration to the parties for the preceding accounts, unless they had been likewise fitted and signed by both partis, quia hoc non agebatur by signing the last account, that all preceding accounts not mentioned in the last account should be discharged. The Lords found, That the balance of the first account being carried to the second, and the balance of the second to the third account, which being subscribed by both parties, did fit and close likewise the two former accounts, and that it was presumed the instructions were given up to Sir Walter, unless h eoffer to prove by Sir James Cockburn's oath, or by writ, that the accounts were fitted upon trust, or that notwithstanding of the fitting of the accounts, the instructions were left in the hands of Sir James Cockburn.
Fol. Dic. v. 2. p. 135. Sir P. Home, MS. v. 1. No 560.
