Robert Watson of Muirhouse, and his Tutors, v. Robert Smith Merchant in Edinburgh.
Date: 9 February 1709 Case No. No 605.
Partial payments marked on the foot of an accepted bill in the creditor's handwriting, were sustained in a process at the instance of the creditor's heir.
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In the action at the instance of Robert Watson and his Tutors against Robert Smith, for payment of L. 402:16s. Scots, contained in a bill drawn by the deceast Robert Watson of Muirhouse, the pursuer's father, and accepted by the defender;
Alleged for the defender; He had paid the whole bill except L. 63:16s. Scots to the pursuer's father, as is clear from the several payments marked on the foot of the bill, and the balance of L. 63 stated due in figures, which he offered to prove by witnesses, was the defunct's hand-writ; and further, he offered to prove by witnesses, that he had made payment conform to the stated account. So the Lords in a like case, February 19th 1708, Millar against Bonnar, No 523. p. 12626., found an account neither subscribed nor written in a count-book, but on a scroll lying by the writer at his death, probative against his heirs.
Replied for the pursuer; 1mo, The account subjoined to the bill might have been relative to some other extraneous affair, since it doth not expressly relate to the bill. 2do, The proving figures to be holograph is impossible, and of dangerous consequence. 3tio, The decision betwixt Miller and Bonnar differs toto cælo, for in that case there was a holograph account of debit and credit; whereas here there is no mention of payment made to the defunct, but only some figures set down, which seems rather a scheme how payment was designed by the debtor in the bill; especially considering that he hath no receipt.
Replied for the defender; The deceast Robert Watson acted herein like other rigid creditors who use to note payments made on the bill, but not to grant receipts, industriously to oblige the debtor, out of fear to be charged for the whole, to pay the balance more quickly. 2do, Figures being mixed with some words may be proved to be holograph, as well as writ; the former being capable of as many varieties by their peculiar strokes as letters. 3tio, The account exactly agreeing with the sum in the bill, and the interest stated accordingly, doth clear that the one relates to the other; hoc maxime attento, that it appears from the defunct's books that he had no other dealing with the defender for several years before; and it is not probable that he would have inserted an extraneous account upon a principal bill.
The Lords sustained the defence, in respect the bill whereupon the account was stated, was still in the possessor's own hand.
