Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Mr Edward Wright
v.
Edward Ruthven

Date: 10 December 1680

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Mr Edward Wright, advocate, having right to the escheat of Ruthven of Gairn, pursues a declarator against Edward Ruthven, upon whom the estate of his grand-father, General Ruthven, Earl of Bramford, was settled by Act of Parliament; to declare that estate affectable with 10,000 merks, for which Gairn procured a bill from Robert Murray upon Francis Kinloch, to be paid to Bramford in anno 1646; and, for instructing thereof, produced Bramford's letter to Gairn, to raise that money out of Bramford's estate, or otherwise, upon his own or his other brother's credit; and upon several missives acknowledging the receipt of the like sum from Francis Kinloch, he being a factor at Paris.

The defender alleged, No process, upon these missive letters, to infer so great a sum, they wanting witnesses. 2do. Nothing is produced to instruct that the sum was furnished out of Gairn's proper money. 3tio. The letters can infer no obligation, unless the bill of exchange, or a bond for the sum, were produced; for the law presumes these satisfied and cancelled, unless they can be produced. Nor can it be supposed that Gairn would have advanced so considerable a sum, without ordering Francis Kinloch to take Bramford's bond, or his receipt upon the bill ordering Francis to pay him the sum; and there being nothing more ordinary than to pay upon retiring bonds or bills, without discharge or missives relating to such bonds or bills, which are never sustained to infer debt without producing the bonds or bills themselves. For the most cautious cannot remember what letters they might have written relating to debts due by them, and desiring forbearance of principal or annual: which, if they did infer debt, albeit the bonds were satisfied and cancelled, they would necessitate the debtor to prove payment by writ; which were impossible.

The Lords found, That these letters were not relevant to prove a debt, without production of a bond or bill of exchange bearing Bramford's receipt of the money.

Vol. II, Page 812.