Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Helen Innes v. Thomas Hamilton
Date: 2 February 1704
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Helen Innes, relict of John Hendshaw, wright, against Thomas Hamilton. Hendshaw being, in 1694 and thereafter, employed by the said Thomas Hamilton, in repairing some houses in Edinburgh, his account of wages and furniture amounted to £360 Scots; and being forced to pursue the said Thomas for payment, before the Dean of Guild in 1699, and dying medio tempore, Helen Innes his relict, with her children, transfer the process, and at last obtain a decreet; which Thomas suspended, on thir reasons: 1mo, That the account was prescribed, quoad modum probandi, by witnesses, not being insisted for within the three years, conform to the Act of Parliament 1579; and though some few of the last articles of the account were made of a date within the three years, yet the bulk were without that space, and thir were but added industriously to interrupt the prescription. And that this was the design was evident, for none of these articles, that were made within the three years of intenting the process, are so much as proven or mentioned by any of the witnesses led; so that their depositions relating allenarly to the articles before the three years, it is a demonstration that it was truly prescribed, and so could not have been proven by witnesses, had it not been for the adjection of these last articles, which are not so' much as proven, though, being last furnished, witnesses would have remembered them best, if true. And, if this artifice were allowed, a merchant or tradesman's account shall never prescribe; for it is easy to add some articles within the three years, by which addition he gets the whole current account admitted to his probation by witnesses; whereas, if these were not added, it could only be proven scripto vel juramento. 2do, The probation adduced is only in general, That Hendshaw wrought several weeks at these houses; but does not prove the particular articles libelled.
Answered,—There is as much probation in this case as the nature of the thing can possibly allow; for, 1mo, The Dean of Guild and his Council visited the work; then, 2do, They examined witnesses thereupon; 3tio, They called for the defunct's count-book, and compared it with the account pursued for, and found it all written with his own hand, and to quadrate both in dates and sums: And though count-books cannot prove pro scribente, but rather against the writer, yet here much regard is to be had thereto, seeing he is dead several years ago; and it cannot be made up ex post facto, as might be alleged if he were yet in life; 4to, In supplement of all, they had taken the widow's oath of knowledge on the furnishing; so that few decreets have so full a probation. And the witnesses being examined on the whole account, their depositions relating to the whole do confirm these articles within the three years, as well as those before.
The Lords, having called for the probation to be transmitted, and having read it, found these last articles that preserved the account from prescription were not specially proven; and that a man's count-book, though an adminicle, yet could not prove for him. The vote was stated, Turn the Dean of Guild's decreet into a libel, or allow a farther probation to support and adminiculate the decreet?—And it carried for the last, the probation already produced having been very expensive, and was not to be wholly laid aside, but to stand as probative, pro tanto.
