Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Skelmorly
v.
His Brother Archibald

1685. March.

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Old Skermorly having given a bond of provision, to his second son, of 8000 merks, and thereafter paid him 2000 merks, and took his bond for the same as so much borrowed money; after his death the second son agreed to take from his eldest brother 6000 merks, in place of the 8000 merks in his bond of provision, without any mention of the 2000 merks' bond: the young Laird being pursued for the 6000 merks, he proponed compensation on the 2000 merks' bond; and the pursuer having proven, by the defender's oath, that the restriction of the 8000 merks' bond of provision to 6000, was made without any payment of money, or onerous cause, on the defender's part;—the Lords repelled the compensation upon the 2000 merks' bond, in respect of the abatement of the sum in the bond of provision; because debitor non præsurnitur donate, unless the defender would prove, by the pursuer's oath or writ, that the 2000 merks of abatement was gifted.

Page 45, No. 201.