Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION IV.

Private Deed, how far probative.
Subject_3 SECT. V.

Accounts, Account-books how far Probative.

James Millar, Coppersmith in the Canongate,
v.
The Executors and Representatives of William Bonar, late Clerk to the Mint

Date: 19 February 1708
Case No. No 521.

An unsubscribed scroll of an account of charge and discharge, wherein a sum due by bond was stated paid, and credit given to the debtor for it, sustained probative of the payment against the representatives of the creditor, the debtor proving that the account was the creditor's holograph writ, and found lying by him at his death.

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In the action at the instance of James Millar against the Representatives of William Bonar, for payment of L. 150 Scots advanced by the pursuer to him, as the fourth part of L. 50 Sterling, which Bonar subscribed for in the books of the African Company in the name of James Millar, who by bond stood obliged to repay the L. 50 Sterling to him, upon this ground, that the defenders had uplifted the said share from the Commissioners of the Equivalent; the pursuer offered to prove payment of the L. 150 Scots, by an account of charge and discharge betwixt him and William Bonar, all written with William's hand, wherein the article of L. 150 is stated, and credit given for it to James Millar. Which holograph account and the bond jumping exactly together in the sum, were fund lying by William Bonar at his death, and recovered by a diligence from Alexander Swynton the defender's factor.

Alleged for the defenders; The pretended account of charge and discharge is but an unsubscribed scroll, consequently null, and not probative, by the act 80. Parl. 6. James VI. and the act 5. Parl. 3. Charles II. It is not sufficient to prove that the same is holograph, because, comparatio literarum (the ordinary mean of proving writs holograph) is so fallible and uncertain, that little stress can be laid upon it. Nor could holograph proved by a party's oath make the scroll of an account probative against him; 1st July 1665, Naysmith contra Bower, No 515. p. 12621.; 2d January 1677, M'Lurg contra Earl of Dalhousie, voce Writ. Yea, 16th December 1680, Lockhart contra Lockhart, (Ibidem.) a subscribed account wanting witnesses was found not probative, being written by one who was no merchant. Again, my Lord Stair (Instit. Tit. Probation by Writ) says, That unsubscribed holographs do not prove, unless written on count-books or authentic writs; and in the case betwixt Purveyance and Knight, June 8, 1677, No 518. p. 12623. it was thought hard that count-books in Scotland, where they are not so exactly kept as elsewhere, should prove a debt against the owner of the book. Nay, this is a case of so general concern, that persons of all ranks might easily be ruined, if scrolls of accounts, which are written very oft spe numerandæ pecuniæ, or upon other suppositions, or even count-books not regularly kept, (though more authentic than scrolls,) should be sustained to prove against them.

Answered for the pursuer; An unsubscribed holograph account is probative in law against the writer's Representatives; 20th November 1662, Wardlaw contra Gray, No 514. p. 12620.; 17th December 1675, Laurie contra Drummond, No 517. p. 12622.; and lately betwixt Mr Andrew Hay and the Executors of Sir Patrick Aikenhead, (See Appendix.) and betwixt Chisholm and Ainsly of Blackhill, No 522. p. 12626. The reason is founded both in law and equity; such accounts being understood framed to no other end than for preserving the memory of payment made, which no man is presumed to do to his own prejudice.

The Lords found the account probative of the pursuer's claim, he proving that the same is holograph, and was found lying by William Bonar at his death; in respect the bond and the account jumped together in the sum.

Fol. Dic. v. 2. p. 261. Forbes, p. 246.