To found the presumption of payment of bygones upon apocha trium annorum, it is necessary that the discharges be in writing.
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The L. Moriston having comprised the lands of Eastnisbet, and being infeft, and arresting the corns in anno 1625 in the tenants hands, after which they paid the farms that year to Eastnisbet, from whom the lands were comprised; thereafter Moriston obtains decreet before the Sheriff against the tenants not compearing, for payment of that year's farms; and they suspending, upon payment made to Eastnisbet, which, albeit it was made after the charger's arrestment, yet ought to be sufficient to liberate the tenants, by reason that, since the obtaining of his sentence, the suspenders have paid their farms completely, of four succeeding years immediately subsequent to the year now acclaimed, the payment whereof they referred to the charger's own oath, and which payment so made ought to import to them liberation of that year, and of all preceding years, as effectually as if they had reported several acquittances upon the payment thereof, and which, if they had obtained, in law would have freed them, specially seeing he never quarrelled the said payment made by them of that year's farm, nor ever mentioned the payment thereof when they paid to him the year's farm sincesyne; and so he must be presumed to have allowed the payment made, otherwise he would have exacted payment of the oldest debt, and not taken payment of the last year, and omitted the former years farms. This reason was not sustained; and the payment made by the tenants after comprising and arrestment was not allowed, nor they found to be freed by the subsequent years payment made since to the charger, except they will say that he expressly remitted to them that year, and prove the same by his oath, or otherwise by writ; for albeit trium annorum apochæ presume liberationem præteritorum, that holds only where the granter of the discharges having given three in writ, and made no reservation in any of them, the law presumes he had no more to crave, having made no mention thereof, when he made the writ; but where payment was made without writ, the payer has followed the faith of his party; so that, if he shall say that he received that payment, without prejudice of the preceding years, as he now does, the debtor remains debtor therein, notwithstanding of the subsequent payment of the other years, and of the payment made to Eastnisbet of the year acclaimed.
