The Lords found that certain presumptions, tho' pregnant, were not sufficient to do away a bond, and that nothing arbitrary should be done in such a matter.
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The Lords heard and advised the debate in the declarator pursued by Andrew Houston, late of Garthland, against Houston of Drummaston, for extinction of a bond of 1200 merks, dated in 1662, upon sundry presumptions; such as, that shortly thereafter the creditor, by a missive letter to the debtor, craved his delay for paying 800 merks he owed him; which he would never have done if he had been resting the said 1200 merks; for he had no more to say, but you are owing me more, et frustra petis quod mox es restituturus. I will compense you. 2do, The debtor sold the creditor a piece of land after the bond, and it cannot be imagined but the sum in the bond was retained in the fore-end of the price. 3tio, By a diary exactly kept, the debtor had marked, that this bond was in that way satisfied; and there has been a long silence and taciturnity. Answered, He opponed his clear liquid bond; and as to the first presumption, it was no wonder he did not mention the 1200 merk bond, seeing the term of payment was not then come; and if it was so soon paid, then this is inconsistent with the second presumption, which ascribes it as part of the price. To the third, Such count-books may be made up at will; and the pretence of taciturnity is irrelevant, being within prescription; likeas, it was not so overlooked but it was confirmed in the charger's father's testament. Presumptions have been by all lawyers sustained to take away bonds as well as a positive probation, the one being as pregnant to convince the mind of a Judge as well as the other. See Menochius De præsumptionibus, lib. 10. præssumpt. 5. et 135. where he shews, creditori solutum et satisfactum quando præsumitur? And Mascardus De probationibus is large on the same subject; and our decisions agree therewith, 12th January 1666, Stevenson contra Crawfurd, infra h. t.; 6th February 1668, Chisholm contra Renies, No 80. p. 12314.; the Duke of Hamilton contra Cunningham, in 1688; and Mercer of Clavage contra Lady Aldie, 15th December 1682, No 605. p. 12708.; and many others, where evidentia facti fidem facit judici as much as a discharge of the debt could do; as in Solomon's decision about the true mother of the child; yet the Lords, in this case of Houston's, found the presumptions (though pregnant), not sufficient to take away this bond; and thought it safest not to use too much arbitrariness in disposing upon the lieges' rights.
Fol. Dic. v. 2. p. 265. Fountainhall, v. 1. p. 783.
