Found presumed from several circumstances against the executors of a defunct, that a sum contained in the testament had been held by the deceased for behoof of another.
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The executors of William Stevenson having confirmed a sum of 3000 and odd pounds due by bond by John Ker to the said William, and also by James Crawford, who, by his missive, became obliged to pay what bargain of victual should be made between the said John Ker, and John Stevenson for himself, and as factor for William Stevenson; subsume, that this bond was granted for a bargain of victual. It was answered, That albeit this bond had been in the name of William Stevenson, yet it was to the behoof of John Stevenson his brother, who having pursued upon the same ground the defender was assoilzied; and that it was to John's behoof, alleged, 1mo, That John wrote a letter to his brother William, to deliver up his bond, acknowledging that it was satisfied; and that John having pursued himself, for the other bond granted in place of this, the said umquhile William Stevenson compeared, or a procurator for him, before the commissaries, and did not pretend any interest of his own; neither did William, during his life, which was ten years thereafter, ever move question of this bond, nor put he it in the inventory of his testament, though that he put most considerable sums therein. It was answered, 1mo, That the presumptions alleged infer not that this bond was to John Stevenson's behoof; because, by James Crawford's letter, there is mention made of several bargains of victual, both with John and William; so that the bond, and pursuit at John's instance, might be for one bargain, and at Williams for another, especially seeing the sums differ; 2do, Writ cannot be taken away by any such presumptions. It was answered, That if the defender, James Crawford, had subscribed this bond, it could more hardly have been taken away by presumptions, but he hath not subscribed the bond, but only his missive letter, which is dubious, whether it be accessory to this bond, or if that bond was for this bargain; and therefore such a writ may well be elided by such strong presumptions.
The Lords found the presumption relevant, and that they instructed the bond was to John's behoof, and therefore, in respct of the absolvitor at Crawford's instance, they assoilzied.
Fol. Dic. v. 2. p. 271. Stair, v. 1. p. 337.*** Newbyth reports this case:
In a pursuit at the instance of Stevenson and Watt, executors-creditors to umquhile William Stevenson, against James Crawford, the Lords, in respect of a number of presumptions alleged for the defender, that the bond pursued upon was satisfied and paid, assoilzied the defender from the pursuit, and ordained the bond to be given up and cancelled.
