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.

Stuart
v.
Agnew

Date: 17 December 1680
Case No. No 517.

An account subscribed without witnesses, and not holograph, was sustained after the death of one of the parties.

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James Stuart, as assignee by his father Sir James, pursues Agnew of Seuchan, as representing his father, for payment of the balance of an account betwixt his father and John Denholm, who was sub-collector to Sir James, of the maintenance in anno 1648, and 1649, which balance contained L. 4000 and odds, as resting by Seuchan then collector of the shire of Wigton. The defender alleged, That this account is null, wanting witnesses; and though counts amongst merchants, and bills of exchange, discharges to tenants, and the like, in which witnesses use not to be adhibited, are sustained, yet so considerable a sum in this case cannot be proved by account, having no witnesses. It was answered, That by the same custom counts betwixt collectors and sub-collectors, are not accustomed to have witnesses, and yet were ever still sustained where the accountant's being sub-collector, was notour or proved, which did ever adminiculate the account; and though such subscriptions may be more easily improved, than where there are witnesses affirming, as comparatione literarum, and other evidences, yet they prove as probative writs till they be improved.

The Lords repelled the defence, and found the account probative, although it wanted witnesses, the pursuer's father having proved that the defender's father was holden collector, or reputed collector at that time.

Stair, v. 2. p. 818. *** Fountainhall reports this case:

Objected against a fitted account, that the docquet of it wanted writer's name and witnesses. The Lords found this no nullity, seeing, in fortification of it, it was offered to be proved, the defender's father was sub-collector of that cess whereof it was the account, and they found the act of Parliament requiring witnesses related to bonds and writs of importance, and not to accounts. This is hard, for now since the act of Parliament, the discovering of falsehood may be elided by forging fitted accounts instead of bonds, seeing they need no witnesses, and then there will be no mean but comparatio literarum, which is very uncertain and vaccillant; and why do we reject missive letters for want of witnesses as not probative, if this were good law. It is true bills of exchange for the favour of commerce need none, because they may be adminiculated by the party's books, and they require summer dispatch.

Fountainhall, MS.