Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Alexander Hay v. Alexander Home, Tailor
Date: 23 July 1670
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Home and his spouse having granted bond to Janet Geddes, kail-seller in Edinburgh; Home, two days before Janet her decease, viis et modis gets the bond; and being now pursued by Hay, who, as sister-son to Janet, is her executor, to pay that sum contained in the bond; he defends, that though lie was once debtro to Janet in that sum, and for that effect granted this bond; yet the same being now in his possession and custody, de jure the same is reputed retired and satisfied. To which it was answered, That the rule of law instrumentum apud debitorem repertum indueit liberationem debili, at the most infers only presumptive payment, and being but presumptio juris, may be elided and taken away by contrary and more pregnant presumptions, such as they have here, viz. that it was seen two days before Janet's death in her own custody; that it is not presumable it was given up upon payment made to herself, she lying then on her death-bed, and having no use for money; as also donatio non presumitur ; and they offer them to prove by the defender's oath, that though he have now his own bond, yet that he paid no sums of money therefore, but that since he got it he offered to treat and pay a part of it, if the pursuer would be content. Replied, Nullo modo relevat that he paid nothing for it, for he might have had it ex donationc, and as for his offer that was only litis redimendæ causa.
They were to have the Lords' answer on it whether or no the defender would be holden to depone in the manner the pursuer craved.
