Consent not presumed, when the Deed can be ascribed to another Cause.
Deacon Somerville v. Earl of Annandale
Date: 13 July 1688 Case No. No 75.
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The Earl of Annandale having objected minority against a bond granted by him for 15,000 merks, to Deacon Thomas Somerville, on which he was pursued by the creditor,
It was alleged for the pursuer; That the defender had, after he was major, wrote a letter to him, excusing the not-payment of the money due by him to the pursuer; which was a clear homologation of the bond.
Answered; The letter doth not mention the bond, but debt, and there is indeed debt due; for the bond is only questioned upon the exorbitancy of accounts for which it was granted; and homologation to take (away) the privilege of minority ought to be express.
Replied; The pursuer was not furnisher of these accounts, but paid them to Mr Lants after they were examined by my Lord and his chamberlain.
The Lords sustained the homologation, the pursuer deponing the whole accounts were paid without any abatement.
Fol. Dic. v. 3. p. 381. Harcarse, (Homologation.) NO 509. p. 142.*** Fountainhall reports the same case:
Thomas Somerville, taylor in Edinburgh, his pursuit against the Earl of Annandale, on a bond of 1500 merks, is reported by Forret.
Annandale had a reduction of it on minority and lesion, as having curators, and they were not subscribers; which he only repeated to the effect to quarrel the exorbitant accounts, and prices of furnishing, of which the bonds were made up. Answered, 1 mo, It was all for aliment, clothes, &c. and so in rem versum. 2 do, It was homologated in majority, by letters acknowledging the debt and partial payments.——The Lords sustained the bond, but ordained Thomas to give his oath on the truth and reasonableness of the articles of his account.
