Payment of a bond was sustained upon most pregnant presumptions; which were not offered to be taken off.
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There was a minute of contract anno 1614, betwixt umquhile Stark of Killermount and Margaret Douglass, wherein he disponed to ber certain tenements, and she with two cautioners were obliged to pay him 4500 merks; this Stark as representing his father, pursues Wrightshouses as representing his father as one of the cautioners for payment; the pursuit commenced anno, 1660, the prescription being saved by the minority of the pursuer. The defender alleged, That the sum was satisfied, and though after so long time his discharge was lost, yet he condescended upon these presumptions and adminicles for satisfaction; 1mo, Silence for forty six years, of which the defunct lived fifteen or twenty, and though the sum bore no annualrent, he used no diligence; 2do, There is produced a discharge of Stark's part of the minute, bearing, that he had fulfilled and quit the possession. There is also produced a bond of that same date of 4000 merks, granted by the same Margaret Douglass, and the two cautioners in the minute, with a third added; and for the other 500 merks, the term of payment thereof by the minute was past, and there is produced a discharge of the bond of 4000 merks, which, though repeating the sum but once, it calls it 3000 merks, yet that is but the error of the extractor out of the register; for the discharge agrees with the bond of 4000 merks in the date, the principal, and the cautioners, and bears that the bond discharged is registered; so that except the extract of a bond of 3000 merks among the same parties, and of the same date, could be shown, this discharge must discharge the bond of 4000 merks, which bond of 4000 merks must be presumed in satisfaction of the minute, and that the odd 500 merks has been paid, the term being past, and that Stark would never have quit the possession unless he had got payment; so that this bond being of the same date with the discharge, acknowledging his quitting of the possession, it must be understood to be given for the price, except it could be shown that there was another bond or another cause. It was answered, That a solemn bond can only be taken away by a discharge or oath, but by no presumptions or adminicles; and that the taciturnity was by the minority of the pursuer.
The Lords found the presumptions and adminicles sufficient to prove the satisfaction of the minute, and that the discharge was sufficient to elide the bond of 4000 merks, unless a bond of 3000 merks could be shown, both bond and minute being so ancient, and the minute without annualrent, and extreme diligence used for the bond of 4000 merks which bore annualrent; likeas umquhile Napier's count-book bore payment to have been made, all written with his own hand, he having died long before this pursuit.
