Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Children of Mr James Fithie v. The Earl of Northesk
Date: 14 February 1693
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The Lords found no process in the exhibition, if insisted in primo loco; for they thought a debtor not bound edere instrumenta contra se, by producing a bond which he alleges was paid, given up, and retired: But found the presumption of liberation ubi chyrographus est apud debitorem may be taken off by a more pregnant and positive one, that it came not by payment into the debtor's hand, but by some other indirect and sinister way; viz. that here it was confirmed by their mother in their father's testament, (which the Lords found a sufficient title to the children as nearest of kin, without taking a dative ad non executa; but did not find that upgiving, in the confirmed testament, a sufficient probation of the existence of this bond,) and was lying beside her the time of her death; and her cabinet being broken up, the said bond of 8000 merks was taken out of it, and at last came into the hands of one of Mr. John Johnston, a broken man, who transacted with this Northesk's father, and gave him back his bond, and got L.1000 Scots at sundry times, as appeared by receipts and letters betwixt the said Johnston and the Earl's chamberlain, who was the manager and carrier on of the fraud. Which condescendence the Lords found relevant to elide the presumption of its being in the debtor's hand; and if this was proven, then they would allow them to insist for exhibition of the bond, but not sooner.
