Presumption that articles claimed have been accounted upon.
Millar v. Howison
Date: 5 June 1666 Case No. No 40.
A party was required to instruct otherwise than by his oath, that a bond in which he was cautioner had existed, and was paid, the bond not appearing.
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Thomas Millar, having pursued the tenants of one Bailie, his debtor, for making forthcoming their duties arrested in their hands; compears Howison, and produces a disposition and infeftments from Bailie, of the tenements, prior to the arrestment, and craves to be preferred. It was answered for Millar, That Howison's disposition was null, as being in fraudem creditorum against the act of Parliament, being granted after the contracting of Millar's debt; and albeit the narrative of the disposition bears causes onerous, yet he offered to prove, by Howison's oath, that it was not for causes onerous, at least equivalent to the worth of the land, which was found relevant; and Howison having deponed, that his disposition was granted for a sum of 300 merks addebted to himself, and the sum of 1600 merks addebted to John Burd, for which he was cautioner for Bailie, the disponer; at the advising of the cause, it was alleged, That the disposition, nor the disponer's oath, could not sufficiently instruct the cause onerous; seeing the oath did not bear, that there was a price made, but only, that there was no reversion, nor promise of redemption granted; yet the disposition was truly in trust, which oft-times is tacit, as being the meaning of the parties, and is not expressed by reversion or backbond; so that if Bailie, or this arrester, would pay these sums, Howison could have no further interest. It was answered, That the points referred to Howison's oath were denied, and that he was not obliged to keep the bonds, but might destroy them, as being satisfied.
The Lords found, That as to Howison's own bond, he needed not instruct the same; but as to Burd's bond, they found, that he ought to instruct it by some adminicles, further than his own oath, that the debt was, and was paid by him, in respect his oath bore not a price made, and that he was uncle to Bailie the disponer.
