A notandum, in the creditor's handwriting, on the back of a bond, tho' delete, joined with other circumstances, found good evidence of partial payments.
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In an action of registration pursued by Norkat an Englishman against Hume, the Lords found, That the obligation desired to be registrated ought not to have execution for that quantity of the sum therein mentioned, whereof there was a note written upon the back of the obligation, by the creditor himself, now pursuer, bearing so much of the sum to be paid, and that there rests only the particular sum expressed in the note; in respect of the which note written by the pursuer's self, and coming out of his own hands, the Lords found, That no execution ought to pass, but for that rest which he had written to be owing; and this note so written was found sufficient to liberate the defender for the remnant of the sum, except the rest foresaid: Albeit it was replied, That the note ought not to derogate from the bond, nor prejudge the pursuer, seeing it was delete, and was not subscribed by the pursuer, who might have written the same upon hope of payment; which never being made, he might lawfully delete that note, as he hath done, and ought not to be hurt in his lawful debt by the once writing thereof, except that the defender might prove payment of the same. Which reply was once sustained as relevant; but the defender further duplying, That since the writing of that note the pursuer had received an obligation from him of far greater sums than were contained in this obligation now controverted; which sums he had paid, and had retired the said posterior bond, which he then produced cancelled, it was a great presumption that the sums which the party had granted paid of that obligation libelled were comprehended in that posterior bond; and so the said posterior bond, with the note of receipt, written upon the first obligation, being respected together, ought to liberate the defender. This duply was admitted to liberate the defender, conform to the note written, as said is, albeit it was delete; but the defender was astricted to prove, that the last bond was once delivered by the defender to the pursuer, and thereafter retired upon payment.
Act. Belshes.Alt. Hope.Clerk, Gibson.
Fol. Dic. v. 2. p. 268. Durie, p. 142.
