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.

Alison Wardlaw
v.
Robert Gray

Date: 20 November 1662
Case No. No 512.

Account-book written by the hand of a person of discretion, found sufficient to prove payment of his rent, against his executor creditor.

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Alison Wardlaw, as executrix creditrix confirmed to her husband, and having confirmed the rents due to him by Robert Gray pursuer therefor, the said Robert alleged absolvitor, for a part of the rents, because paid, which he offered to prove by the defunct's count-book in the pursuer's hands, which, count-book is written with the defunct's own hand, and bears several receipts paid by the defender at several times. The pursuer alleged, That the count-book, cannot prove, because it wants a subscription, and count-books do only prove contra scribentem, in the case of merchants who kept exact current count-books, which is a special privilege of theirs, and was never extended to any other case, nor to any other person, for a discharge subscribed before witnesses would not liberate if it were not delivered to the other party, much less can a count-book. 2do, Whatever it could work against the writer and his heirs, yet not against assignees or executors creditors, who are in effect singular successors for their own payment, otherwise no assignee could be secure, but after the assignation the cedent might write receipts in his book; but though he should grant a holograph discharge bearing date before the assignation, it would not prove against the assignee. The defender answered, That the count-book was sufficient to prove liberation, being by a judicious person, though not a merchant, for it could be done to no other intent than to preserve the memory of the payment made, which though most ordinary amongst merchants, is no special privilege of theirs; and albeit an undelivered discharge would not be sufficient, yet that being but unicum chirographum, requiring delivery, hath no effect without delivery; but a count-book contains many writs, and requires no delivery; and albeit it should not prove against an assignee, as neither would an holograph discharge, yet it is sufficient against an executor creditor, who can have no right till the defunct be dead, and so there can be no hazard of receipts posterior to their right; and therefore against an executor creditor a holograph discharge would prove.

“The Lords found the allegeance of the count-book written with the defunct's own hand sufficient to instruct payment of the articles mentioned therein; but seeing the defender who paid was on life and present, ordained him to make faith that he truly paid accordingly.”

Fol. Dic. v. 2. p. 260. Stair. v. 1. p. 143.