vations. CHAPTER XI. EVIDENCE (a). General obser- THE kind of evidence admissible in questions between companies, their members, and the public, as well as its import and legal effect, must be ascertained by referring to the rules and principles of evidence as these are generally applicable. At the same time, it must be observed, that from the peculiarities of the partnership relation, the common principles and rules of evidence frequently require a special adaptation when it forms the subject to which they are applied. Already in the course of this work we have, under the heads Evidence of Partnership (b), Prescription (c), Reference to Oath (d), and Admissions (e), somewhat fully examined certain cases in which this special adaptation is exemplified; and when treating of Bankruptcy, Dissolution, and Winding-up, we shall have occasion to return to the same subject. It has, however, been thought advisable to bring together within the compass of the present chapter some of the more important principles and rules which the characteristic incidents of the partnership relation bring into operation. Evidence of partnership. Evidence of Partnership.-Generally, the declarations or depositions of the alleged partners of another cannot be used against the latter to establish that he is a partner (f); but they may sometimes be admitted as part of the res gestæ, their effect being left to the jury (g). A witness cannot be asked whether he believed that two or more persons were partners, but he may be asked as to facts showing that they were so (h). In an action by a railway com (a) See Dickson on Evidence. (c) P. 279. (d) P. 529. (e) P. 532. (f) Belch, 1806, 2 Bell's Com. 399, n. 4; Smith v. Puller, 1820, 2 Mur. 342. (g) Same case. (h) Chatto and Co. v. Pyper, 1827, 4 Mur. 354. pany for payment of calls, the defenders objected that their name had been improperly entered on the company's books, and the authenticity of the registers was challenged. At the trial, two books, said to be registers, were tendered by the company in evidence, and admitted by the judge, though their admissibility was objected to because it had not yet been determined whether they were registers or not, and also because they were not kept and authenticated in terms of the Act. It was held on a bill of exceptions, that though statutory registers were conclusive evidence, the fact of membership might be otherwise established, and that the books, such as they were, were evidence for the jury (a). Allegations of partnership are different from allegations of trust, and may therefore be proved prout de jure. Thus, an allegation that money deposited in bank in name of a person deceased, belonged to a partnership of which the defender and the deceased were partners, was held not to be an allegation of trust, so as to be restricted to proof by writ or oath (b). See, upon this subject generally, Book I. Chapter VIII. ships. Where certain shares of a ship were registered in the name of a Shares in party individually, it was held incompetent to prove that they were the property of a company of which he was a partner (c); and when, from the certificate of registry, a party appeared to be the owner of a ship, it was held incompetent for him to adduce evidence to contradict the certificate, and show that he was not the real owner (d). partner's Extent of Partner's Share (e).-Entries in the company books Extent of have been held as conclusive evidence on this matter (f); but share. private books kept by a partner, and which it was not proved had been seen by the other partner, were not admitted as evidence against the representatives of the latter, in an accounting at the instance of the executrix of the former (g). At the same time, a partner is presumed to be cognizant of the contents of the books (a) Caledonian and Dumbarton Ra. Co. v. Lockhart, 1854, 17 D. 25; but see 17 D. 917. (b) General Assembly of Baptist Churches v. Taylor, 1841, 3 D. 1030. (c) Ord v. Barton, 1846, 8 D. 1011. (d) Morton v. Black, 1843, 5 D. 411. (e) See, as to this, p. 377 et seq. (g) Smith v. Logan, 1826, 5 S. 29; Minutes of meetings. Act 1845. kept as company books (a); and in an action inter socios, a valuation of the company stock by one of the partners was admitted (). Minutes of Meetings. When the company is incorporated or formed under a statute, the prescribed rules contained in the instrument of incorporation, or in the general Acts to which it refers, must be regarded as regulating the mode of authenticating such documents (c). The minutes of the meetings of provisional committees, or of promoters, are not the writ of any member who does not sign them (d). And the provisions of the Companies Clauses Act, 1845, as to the keeping of minutes by the directors, do not apply to the minutes of provisional directors before incorporation (e). Generally, it may be said that where the resolutions of a meeting have been reduced to writing, it is incompetent to ask a witness what they were (ƒ). In an action on a contract, between provisional directors and road trustees, the Court refused to admit evidence by letters to modify the terms of the contract (g). But in a question as to the intimation of an assignation of shares alleged to have been made at a meeting of shareholders whose proceedings were recorded in a minute, the Court allowed part of the res gesta which were omitted in the minute, and denied to have taken place, to be proved parole (h); and in an action of damages for non-implement of a contract said to have been embodied in a minute of the directors, but not signed, it was held competent to exhibit to the company's secretary the draft of the minute prepared by him, and to ask him if it contained a correct account of the res gesta (i). By the Companies Clauses Consolidation Act of 1845, it is required that all minutes of meetings shall be entered in books kept for the purpose, and shall be signed by the chairman; and when (a) Kenney v. Walker, 1836, 14 S. 803. (b) Ewing v. Crichton, 1827, 4 Mur. 184. (c) See Whitehaven and Furness Ra. Co. v. Bain, 1850, 12 D. 829, aff. 1850, 7 Bell's App. 79; Great Northern Ra. Co. v. Inglis, 1851, 13 D. 1315, aff. 1852, 24 Jur. 434, 1 Macq. 112. See Companies Clauses Act, secs. 10, 11, 101. (d) Johnston v. Scott, etc., 1860, 22 this has been done, they are legal and conclusive evidence of what they contain until the contrary is proved (a). By the Companies Act of 1862, it is provided that minutes of all Act 1862. resolutions, and proceedings of general meetings, and of the directors or managers, must be duly entered in books kept for the purpose. These minutes, if purporting to be signed by the chairman of the meeting or of the next subsequent meeting, are evidence in legal proceedings. Until the contrary is proved, all general meetings, or meetings of officials of which minutes have been so made, are presumed to have been duly held, and their resolutions to have been duly passed; and all appointments of officials made at them, and all acts done by such officials, are valid, though some defect may afterwards be discovered in their appointments or qualifications (b). incorporated The minutes of unincorporated associations enjoy none of the Minutes of unprivileges of those of corporate bodies. In a question inter socios, associations. it is probable that any rules as to authentication laid down in the instruments of formation will be held obligatory, so that when they have not been adhered to, shareholders will not be held bound. But the question is very different when it arises with the public, who, knowing nothing of such private rules, cannot be supposed to be bound by them (c). In a discussion on the relevancy and competency of an action by the directors of an unincorporated company, the pursuers were allowed to found upon and read in support of the action, the minutes of meetings, and reports made by them to their shareholders, though these were neither admitted nor proved (d). Company Books.-Evidence of the handwriting of the secretary Company of a private company is not sufficient to authenticate the books; they ought to be authenticated by the secretary's evidence (e). The mode in which the books of an incorporated association are to be authenticated is generally fixed by the incorporating instrument. Partners of private firms are presumed to be cognizant of the contents of the company books, and are accordingly bound by them (ƒ). (a) 8 and 9 Vict. c. 17, s. 101. (b) 25 and 26 Vict. c. 89, s. 67. (c) See Ivison v. Edin. Silk Co., 1846, 9 D. 1039; Hill v. Lindsay, 1847, 10 D. 78; Inglis v. Cunningham, 1826, 2 Mur. 77; Mansfield v. Maxwell, 1835, 13 S. 721. (d) West of Scotland Malleable Iron Co. v. Buchanan, 1855, 17 D. 461. See Dickson on Evidence, s. 1169. (e) Auchmutie v. Ferguson, 1817, 1 Mur. 205 and 208. (f) Kenney v. Walker, 1836, 14 S. 803. books. Questions of privilege. Excerpts. Entries in books kept by a bank agent for the bank have been held to be his writ, and good evidence against him in a question with a private creditor (a). An entry in a pass-book duly initialed by the officers of a bank to the credit of a depositor who had a current account, is merely prima facie evidence against the bank, and may be rebutted by evidence prout de jure (b). In an action for the price of goods sold, it was held that, after a proof and production of partial excerpts from the pursuer's books, it was incompetent to refer to these excerpts as establishing payment (c). A general order for inspection of the books of a mercantile company has been refused (d). In an action of damages for non-delivery of railway shares, it was held that, though the company were not parties to the action, the secretary was bound to exhibit to the commissioner the company books, so that he might judge whether they instructed the price or not, under reservation of any special objections to their inspection arising from the nature of the transaction, which the secretary might state (e). When a law-agent who had bound up the scrolls of all deeds prepared by him, though affecting different clients, in one volume, declined to deliver up this volume, but allowed excerpts to be taken by the commissioner, and brought the original scroll with him to the trial for collation with the excerpts, it was held that the excerpts might be put in evidence, and that it was not necessary to lodge the original scroll eight days before the trial (ƒ). Excerpts from the books of a mercantile company, defenders in an action made under a commission and diligence, and duly authenticated, may be produced at a trial, and it is not necessary to produce the books themselves (g). But, on the other hand, it has been held that the register and minute-book of a railway company must in an action for calls against a shareholder be produced eight days before the trial, and that excerpts produced before that time which were not certified were not sufficient (h). Even when (a) Anderson v. Wright, 1840, 15 (e) Graham v. Sprot, 1847, 9 D. F. C. 1187. 545. (b) Rhind v. Commercial Bank, 1860, 3 Macq. 643, 22 D. (H. of L.) 2, reversing 19 D. 519. (c) Ralston, Goodwin, and Co. v. M'Lean, 1857, 19 D. 878. (d) Houldsworth v. Walker, 1819, 2 -Mur. 85. (f) Wilson v. Glas. and S.-W. Ra. Co., 1851, 14 D. 1. (g) Thom v. North British Bank, 1850, 13 D. 134. (h) Whitehaven and Furness Ra. Co. v. Macfadyen, 1849, 11 D. 846; Carrick v. Saunders, 1850, 12 D. 922. |