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.

Mr James Nasmith
v.
Alexander Bower

Date: 1 July 1665
Case No. No 513.

An account on several pieces of paper, not probative to instruct a debt against the writer of it, who acknowledged that he had written it, but that he had also paid it.

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This being a concluded cause, a question arose upon the probation, an account being produced between two merchants, referred to Bower's oath, that it was his hand-writ, and yet resting, he deponed it was his hand-writ, but not resting. The question arose, whether he behoved to condescend and instructhow it was paid; because, though the account written with his hand unsubscribed, was of itself sufficient probation, the quality was not competent, but he behoved to prove payment, it being alleged that a merchants' hand-writ is sufficient, and that a note on the back of a bond, or foot of a count, by the debtor's own hand-writ, though not subscribed, has been found probative.

“The Lords found, that if this had been a current count-book, it wouldhave been probative, but having been only some few schedules of paper, found it not probative without subscription, albeit it was acknowledged by the oath to be the deponent's hand-writ.”

Fol. Dic. v. 2. p. 260. Stair, v. 1. p. 293.