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IV DOW. IVORY AND CO. V. GOURLAY [1816] SCOTLAND. APPEAL FROM THE COURT OF SESSION. IVORY AND CO., Appellants; GOURLAY, Respondent [Feb. 21, 23, 1816]. [3 Scots R. R. 357.] [Though a merchant's books may, by the law of Scotland, afford a semiplena probatio in his own favour, yet in order [468] 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.] 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 bank- rupt) was issued. Gourlay, merchant in Dundee, entered his claim for £1437 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 bad been intro- duced 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. 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 trans- ferred to the ledger, and that an account of it [469] had been produced entitled on the back, in Ivory's hand-writing, "Gourlay's flax, 1796"; the delivery appearing to have taken place in 1796, though the price was stated in Gourlay's books to have been due in 1797. 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. 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, ont 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 [470] parcel in question might be part of this flax, and therefore reported that sufficient evidence had been adduced to prove the delivery of the third article. The fourth article was regularly entered in Gourlay's books, and in those of Ivery and Co., and, on the appeal, was not disputed. 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. 1230