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.

Ainsly of Blackhill
v.
Adam Chisholm

Date: 13 February 1696
Case No. No 520.

An unsubscribed scroll of a tenanr's account, delivered to him by the factor of an estate, found probative against the landlord.

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Phesdo reported Ainsly of Blackhill against Adam Chisholm, Lord Lothian's tenant in his lands of Newton, for payment of two sums contained in a bond and a bill or precept. The defence was, by a fitted account, under your father's hand (who was chamberlain) these debts are all stated and paid. Alleged, It is but an unsubscribed scroll, which has been only made up for memory's sake, and is liable to several errors and corrections, and so not probative. The Lords thought if this scroll had been in the chamberlain's hands, there might have been some ground of cavil; but being delivered by him to the tenant, and all written with his own hand, the rusticity of labourers on the one side, and the nimbleness of chamberlains on the other, pleaded it should be sufficient to exoner, though it was not so authentic as a merchant's count-book exactly kept. Some urged, that, beside the proving its being holograph, the tenant should also be burdened to instruct that was his way of counting, by giving them unsubscribed scrolls of their accounts; but this was not required, the Lords proceeding more upon material justice in this case than strict law, according to Constantinus' rule in 1. 8. C. De judiciis, Placuit in omnibus causis præcipuam esse justitiæ æquitatisque quam stricti juris rationem.

Fol. Dic. v. 2. p. 261. Fountainhall, v. 1. p. 711.