Ivory and Co. v. Gourlay [1816] UKHL 4_Dow_467

UKHL
Ivory and Co. v. Gourlay
[1816] UKHL 4_Dow_467
REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS, During the Session , 1816.56 Geo . III.SCOTLAND.APPEAL FROM THE COURT OF SESSION.

No. 23

Ivory and Co. Appellants v. Gourlay Respondents

Feb . 21 , 23 , 1816 .Subject_ MERCHANTS'S BOOKS. — EVIDENCE.to have this effect they must be regularly kept; for otherwise no man could be safe in dealing with another: and even honest demands can be enforced only in a manner consistent with general policy, and the interests of the community.Though a merchant's books may, by the law of Scotland, afford a semiplena probatio in his own favour, yet in order

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Claim.Action.Defence.In 1803, Ivory and Co., flax manufacturers at Douglas town, in the county of Forfar, became insolvent, and a sequestration (in the nature of a commission of bankrupt) was issued. Gourlay, merchant in Dundee, entered his claim for 1437 l . for flax furnished. The trustee in the sequestration rejected the claim, and in 1804 an action was brought before the Sheriff to recover the above sum, being the price of four several parcels of flax; the first alleged to have been furnished in 1797, the second in 1799, the third in 1800, and the fourth in 1802. The defence was, that there was no evidence that any of the parcels had been furnished, and that the second article had been introduced solely for the purpose of saving the first from the triennial prescription which, as there was no evidence of the furnishing of the second article, had run upon the first supposing it to have been furnished. The Sheriff decided in favour of the claim, and the cause was removed into the Court of Session by advocation.Merchant's books.First article.Under a remit from the Lord Ordinary an accountant examined the books, and he reported that first article was regularly entered in the day book of Frederick Gourlay, under whom the Respondent, Gersham Gourlay, claimed; that the amount was transferred to the ledger, and that an account of it

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Second article.The second article was also entered in Gourlay's books, but placed to the debit of one Sturrock, a flax manufacturer who had become insolvent before Ivory and Co., and with whom Ivory and Co. had some dealings. This, in a different hand-writing from that of the original entry, was by a marking on the margin , without date, transferred to the debit of Ivory and Co. This article was in the ledger carried to the debit of Ivory and Co. and appeared not to have been charged against the estate of Sturrock. The accountant however was of opinion that the irregularity of the entry was such as to deprive it of that degree of credit which would have been due to it if originally made to the debit of Ivory and Co.Third article.As to the third article, it was entered in Gourlay's books, but the entry in the day-book was inserted at the bottom of a page, out of the regular order of dates; and the accountant was of opinion that it had been interpolated, and that the Pursuer was not entitled to found upon Gourlay's books in support of this article. But there was an entry in the receiving books of Ivory and Co., of flax received at different times from the 7th of March to the 29th of April, 1801; and Sturrock having deponed that he assisted in the purchase of a quantity of flax for Ivory and Co. from F. Gourlay and the Pursuer, but in what year he did not recollect, the accountant thought it might be presumed that the

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Fourth article

The fourth article was regularly entered in Gourlay's books, and in those of Ivory and Co., and, on the appeal, was not disputed.Judgment below, all the articles proved.The Lord Ordinary and Court of Session were of opinion that the evidence was sufficient to prove the delivery of all the articles, and decerned for payment of the whole demand. From this judgment Ivory and Co. appealed.Ersk. lib. 4. tit. 2. s. 4.It was contended for the Appellant that the entries in the books of Gourlay were by themselves semiplena probation and, with the Pursuer's oath in supplement, and evidence of Sturrock, ought to be considered as full evidence of the delivery. On the other hand, it was contended that these books were too irregularly kept to be relied on as to the second and third articles, and that these being out of the question, the price of the first was extinguished by the triennial prescription.Judgment.Lord Eldon (C.) If a merchant's books may, by the law of Scotland, afford a semiplena probatio in his own favour, they ought at least to be more regularly kept than these are: for no man can be safe in dealing with another, if books so irregularly kept are to be admitted as evidence. The whole demand may be honest; but there are many honest demands which, on grounds of general policy, cannot be enforced, on account of the danger to the interests of the community; and if persons will keep their books in this way they must bear the loss.Formal judgment. Second and third articles not proved.

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Judgment:—

“That there was sufficient proof to sustain the demand in respect of the first article, unless barred by prescription; that there was not sufficient evidence to sustain the demand as to the second and third articles; but the finding to be without prejudice to the instituting of any other suit in relation to the third article, in case the Pursuer should allege that any thing was due to him in respect thereof, otherwise than as represented in this account; and that there was sufficient proof as to the fourth article: and with these findings the cause was remitted.
Solicitors: Agents for Appellants, Spottiswoode and Robertson.Agent for Respondent, Richardson.Note .—In the cases of “ Jones v. Hancock ,” and “ Long v. Hancock ,” p. 145, it ought to have been stated in p. 150, in addition to the statement as to the heir-at-law's case, that on the ejectment by the heir of Hugh Henry, the ultimate devisee, the judgment in K. B. was against the lessor of the Plaintiff, and that that judgment was affirmed by the Court of Exchequer Chamber. Vid. Index, or Table of Contents, tit. Devise .In the case of Stacpoole v. Stacpoole , p. 221, by the words “nothing was said upon this point” (viz. whether such of the next of kin as did not appeal against a decree were entitled to the benefit of the appeal of one who did appeal) “ in the ultimate judgment ,” it is meant that nothing was said about the point in the speech in judgment; for it will be perceived, from the abstract of the formal judgment, that they were, though nothing was said about it in the speech in judgment, in fact held entitled to the benefit of the original appeal, having been first made parties to the original and cross appeals, as Respondent.—Vid. Index, tit. Appeal .