Scottish Court of Session Decisions

John M'Adie, fishcurer in Pulteneytown, Caithness, died on 29th July 1877, leaving a widow who was confirmed his executrix in October following. In 1880 George M'Adie, draper in Wick, brother of the deceased, raised this action in the Sheriff Court there against Mrs M'Adie, as her husband's executrix, in which he concluded for £955, 5s. 4d., with interest from 27th March 1877, and £8, 17s. 1d. with interest from 28th July 1877. He alleged that the first of these two sums was resting-owing to him by the deceased at the time of his death for goods furnished and cash supplied to him up to 27th March 1877, and the second for goods supplied subsequently to that date. Some of the entries bore to be for goods supplied to John M'Adie for fishermen in his employment. Indebtedness for a part of the second account was admitted by the defender. The account for the whole sum of £964, 2s. 5d. sued for commenced on 31st October 1865, and closed on 19th July 1877. It was taken from the pursuer's books. It was an account for (1) goods supplied; (2) disbursements made for John M'Adie; (3) loans under £8, 6s. 8d.; (4) loans over £8, 6s. 8d.; (5) money which the pursuer alleged that John M'Adie had collected for him, but which had not been accounted for.

The pursuer produced the following document (No. 6 of process), which he alleged to be an acknowledgment of indebtedness on the part of the deceased of the sums sued for up to its date—

“ Wick, 27 th March 1877.—I have this day examined account against me in my brother George's ledger, showing balance due by me of Nine hundred and fifty-five pounds five shillings and four pence sterling, for goods and cash supplied to me to this date, and I hereby declare the same correct John M'Adie.”

This writing was not appended to the account in the books of the pursuer, but was written on a small slip of paper by itself. It was not holograph of John M'Adie, but it bore to be signed by him, and the genuineness of the signature was not disputed.

The defender pleaded—“(2) The alleged acknowledgment founded on not being holograph of the deceased John M'Adie nor in any way tested, is inept and insufficient to constitute a claim against the defender, his executrix. (3) The defender, as executrix of the late John M'Adie, not being indebted to the pursuer in the sums prayed for, except to the extent of £3, 9s. 2d., for goods supplied in May and July 1877, she is entitled to decree of absolvitor against the pursuer for any sum beyond the said amount admitted, with expenses.”

The Sheriff-Substitute ( Spittal) allowed a proof.

The pursuer having admitted in his examination that he had previous to the raising of the action made over his business, including book debts, to Charles Dunnet and George Swanson, two of his shopmen, the defender's procurator moved the Court to dismiss the action in respect of no title to sue on the part of the pursuer. On the motion of the pursuer's procurator the Sheriff-Substitute sisted them as pursuers.

Proof was thereafter resumed, in the course of which the following facts were elicited—John M'Adie had had a course of dealings with the pursuer since the latter commenced business as a draper in 1846, till John's death in 1877. They had also had bill transactions. The pursuer had retired a good many bills for his brother, and these formed items in the account sued on. The pursuer deponed that he had also made cash advances to his brother, taking cheques for them. “My brother often came to my shop and took money as he required, and left a cheque for the sum, and I would cash the cheque some time after when his bank account admitted of it.” On this point Dunnet and Swanson stated that John M'Adie used to come to the shop after bank hours with cheques, which they cashed for him. The other pursuers, Dunnet and Swanson, had been in the employment of George M'Adie during the whole time over which the account extended. The document above quoted was written out by Dunnett and signed by the deceased of the date it bore, in the shop, in presence of Dunnett and Swanson, after the deceased had occupied two hours in examining the ledger. Swanson explained in his evidence that the reason of the acknowledgment founded on being signed, was that a large bankrupt stock had been bought by G. M'Adie for his business, and the giving of the document was intended to help to raise money, John M'Adie intending to be cautioner for his brother.

The Sheriff-Substitute “decerned against the defender as executrix of the late John M'Adie, and in favour of the pursuers Charles Dunnet

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and George Swanson, for payment of the principal sums with interest, as concluded for.

Note.—The main point here is the document No. 6 of process. It appears to me to be a document in re mercatoria, binding on the late John M'Adie, though only signed not written by him, and binding also on the executrix. Rule v. Alton, M. 16,961, and some other cases under ‘writ’ appear to come near the present case.”

The defender appealed to the Sheriff, who “sustained the appeal and recalled the interlocutor of the Sheriff-Substitute, and allowed both parties further proof, by the production by the pursuers of the business books in which the accounts of John M'Adie with George M'Adie were contained, and by the defender of John M'Adie's books.

Note.—The analysis of the account sued for, the evidence as to the document No. 6, and an examination of the authorities, have led the Sheriff to the conclusion that that document cannot be viewed as in re mercatoria.”

Thereafter he remitted the process to Mr James Gilchrist, banker, Wick, as an accountant, to examine the books, accounts, cheques, and other documents in process, and to report a statement of accounts between John and George M'Adie.

Note.—The Sheriff finds, on examining the ledger, not only that there is no adjusted balance on 27th March 1877, the date of the document No. 6 of process, but that the account sued for seems inconsistent with the ledger. The entry of boats and nets handed over in 1870, and not entered until January 1877, has evidently, from the colour of the ink, not been made at the same time as the other entry under 15th January 1877. Further, there is deducted in the account sued for, under date 27th May 1877, a discount of £32, 11s. 3d., allowed in consideration of Alexander Miller's account and others, which is not in the ledger, is not satisfactorily explained by the evidence, and seems a random sum to bring out the balance stated in No. 6 of process. Another curious thing is, that this entry of the subsequent date of 27th May 1877 is necessary to get the summation at 27th March 1877 in the ledger to tally with the balance stated in the document (No. 6 of process) of that previous date, 27th March 1877. At best the Sheriff could not have given any further effect to the document than to consider it as a docquet to an account—separate, indeed, from the account—but that was held of no moment in Mackenzie v. Mackenzie's Trustees, 14th June 1831, 9 S. 730. There such a docquet was held not to exclude a remit to an accountant to examine the accounts so docqueted, and to report. The circumstances above alluded to seem, however, to bring the case nearer to Laidlaw v. Wilson, 27th January 1844, 6 D. 530, where similar suspicious circumstances led the Court to refuse to sustain such a docquet as a voucher of debt at all. The accountant will therefore, under the remit now made, frame an account between the brothers John and George M'Adie, embracing the cheques produced by the defender, which being holograph of John and endorsed by George M'Adie, seem to require at least equal effect given to them with the improbative document by John (No. 6 of process).”

Mr Gilchrist in his report, after tabulating the entries of the account under their appropriate headings, brought out a balance of £715, 8s. 0 1 2d. against the deceased John M'Adie; but reported certain entries amounting to £553, 14s. 4d., as “all unsupported by any vouchers or a trace of corroborative evidence,” and therefore falling to be deducted from the balance if disallowed by the Court. He credited to John M'Adie the amount of the cheques mentioned in the note of Sheriff.

The Sheriff, on considering the report, allowed these deductions, and found the balance due to the pursuers Dunnett & Swanson to be £161, 13s. 8 1 2d., and decerned therefor with interest.

The pursuers appealed to the Court of Session, and argued—The document signed by the deceased was meant as a docquet to the ledger account. It was therefore a privileged writ, being in re mercatoria, and was probative of the of the account to which it was appended,— Stephen v. Pirie, Feb. 1, 1842, 10 S. 279; Fell v. Rattray, Jan. 28, 1869, 41 Jur. 236; M'Laren v. Liddell's Trustees, 24 D. 577; Mackenzie v. Mackenzie's Trustees ( supra cit.); 1 Bell's Comm. 342. The last entry of the account being within the three years, no part of it was subject to prescription.— Auld v. Aikman, July 7, 1842, 4 D. 1487. Many of the items in the account were for goods supplied to fishermen in the deceased's employment. Parole was competent to prove intromissions with moveables, and these entries could be brought under that head.—Dickson on Evidence, sec. 587. Collection of sums and disbursements on behalf of a third party could also be proved prout de jure.— Glasgow Royal Infirmary v. Campbell, Nov. 2, 1857, 20 D. 1. As to the items below £8, 6s. 8d. parole proof was of course competent. With the exception of about £43, the pursuer had produced written vouchers for the whole sums claimed, and as to these only referred to the docquet by way of corroboration. (2) The cheques drawn by John and endorsed by George M'Adie, if not themselves sufficient vouchers of the loans, were at least enough to let in parole proof. — Thorns v. Thoms, Dec. 20, 1867, 6 Macph. 174.

The defender replied—Loans to a person deceased must be proved by writ, tested or holograph. This document was neither. It was not in any sense in re mercatoria. — Hamilton's Executors v. Struthers, Dec. 2, 1858, 21 D. 51; Alexander v. Alexander, Feb. 26, 1830, 8 S. 602; Miller v. Farquharson, May 29, 1835, 13 S. 838; Armand's Trustees v. Armand, Feb. 6, 1869, 7 Macph. 526. (2) A cheque proved the passing of

money, nothing more, and it could not found a claim to parole proof where it was not otherwise admissible.— Haldane v. Speirs, March 7, 1872, 10 Macph. 537.

At advising—