United Kingdom House of Lords Decisions

John Maxwell and Archibald Smith carried on business in company, as writers, in Glasgow. Maxwell died in 1793, and Smith in 1808. In mutual actions raised at the instance of the representatives against each other, for the balance respectively alleged to be due from the one partner to the other, a question of evidence arose. The firm had not kept regular books of account, and there was no company cash-book indicating what sums had been drawn out by Maxwell; but there were two small books, apparently the private books of Smith, containing memoranda of his personal affairs, and occasional entries relative to company concerns; among others, sundry items of payments made by Smith to Maxwell. If these items were taken into account, the balance would be largely in favour of the representatives of Smith—if they were excluded, the balance would be largely in favour of the representatives of Maxwell. ^* There was no evidence that in point of fact these books had been seen or consulted by Maxwell. The Lord Ordinary, Alloway, found, “that there was no reason to suspect that these books had not been fairly kept by Smith at his office, and subject to the inspection of Maxwell whenever he chose to look at them; and before answer remitted to an accountant to prepare a report of the state of accounts betwixt the parties, in which he will give such credit to the books in question as he shall consider them entitled to.” The accountant reported that both books were entitled to credit, and ought to be sustained as evidence; and that a balance of L.489. 3s. was due, as at Martinmas 1808, to the representatives of Smith. Objections having been made to this report, the Lord

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* Before Smith's death, an accountant, founding upon the entries in these books, had reported a balance due to Smith, which, although not actually admitted by Maxwell's representatives, does not seem to have been, for a long while, actively disputed.

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