Three successive discharges found to support the presumption of payment of bygones, although a bond had been granted by the tutor of the debtor, for part of the arrears.
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The deceast Lord Whittinghame, having a pension of L. 100, to be paid out of the blench-duties of the erection of Holyroodhouse, umquhile Mr Francis Bothwel being tutor to John now Lord Holyroodhouse, gives a bond to the said Lord Whittinghame, for payment of that duty of the crop 1624, at Martinmas the said year, and dies before the term of payment; which obligation Whittinghame assigns to Douglas, his servant, who pursues the heirs and executors of umquhile Mr Francis for payment; who alleging that the Lord Whittinghame, after this bond, was in use, divers years thereafter, to receive payment from the said John now Lord Holyroodhouse of the said pension, likeas he had granted payment by three several discharges of three years payment thereof, for three years together, and which of law must presume payment of all preceding terms, and consequently must liberate from this bond: The Lords found the exception relevant to liberate the excipient from this bond, albeit the pursuer replied, that this presumption ought not to liberate from that year whereof the party creditor had provided himself of a sufficient security by the bond, in which case the presumption ceases, and the payment made thereafter by another party, than by him who was obliged by this bond, cannot liberate him who was obliged by the bond, being a distinct party; which reply was not respected, by reason that the bond was granted by the tutor to him, who thereafter had made the payment excepted on, and also that it was so long lain over, never craved till now.
Act. Craig.Alt. ——.Clerk, Gibson.
Fol. Dic. v. 2. p. 136. Durie, p. 713.
