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Scottish Court of Session Decisions >>
Alexander Tait v Charles Murray of Halden. [1696] 4 Brn 328 (20 November 1696)
URL: http://www.bailii.org/scot/cases/ScotCS/1696/Brn040328-0704.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Alexander Tait v. Charles Murray of Halden
Date: 20 November 1696
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Rankeilor reported Alexander Tait, merchant, against Charles Murray of Halden. The reason of reduction of the Commissaries' decreet was,—that they had committed iniquity in sustaining the scroll of an account probative against him, only because it was written by him, though it was neither subscribed nor delivered in by him to Tait; and that the Lords, on the 1st of July 1665, Nasmith against Bower, had found such schedules not probative amongst merchants, unless it had been a current count-book, which always prove contra scribentem.
Answered,—The account, all written by Halden, being now in Tait's hands, it presumes delivery to him, unless the contrary be proven; likeas there was another double of it in Thomas Dishington, Halden's own servant's hand, and Tait was content to produce his own count-book in fortification, where this article is so posted to Halden's own behoof.
Replied,—He got this account out of Sir Thomas Moncrief's hands, to whom it was given for clearing Halden's account with the Lords of the Treasury.
The Lords, for expiscating the matter of fact, ordained Sir Thomas to be examined anent his having said account, and quo nomine he got it; and if he gave it to Tait, and had warrant from Halden so to do; as also Dishington to depone anent his knowledge in the affair, and Tait's count-book to be inspected how this article is inserted. This was judged safer than to sustain unsubscribed accounts as probative in the general.
