A woman's own agent having borrowed money from her, altho' he had his bond in his own possession, an Investigation was ordered to see what probability there was he had paid it.
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John Scot, writer in Edinburgh, having borrowed 1000 merks from Jean Brugh, when a widow, upon his own bond, she being now married to one Jenkins, and craving the annualrent, he shifted a long time, then sought a sight of his bond, which she, after search, could not find, and thereon pursues him, and offers to prove the debt by his oath; in which process he compears, and produces the bond in his own hand, and so pleads liberation on the common ground of law, that instrumentum apud debitorem repertum præsumitur solutum. Answered, Your having of the bond is indeed a præsumptio juris of its having been paid and retired, yet it is not a præsumptio juris et de jure, which admits of no probation in the contrary, but may be canvelled and redargued by your oath, by which I offer me to prove, that you neither got the bond delivered up to you by me, nor any having my warrant or order, and that it is still resting owing, and that you never paid it to me. Replied, Nullo modo relevat, that I did not pay the money to you; for is there any thing more ordinary than to trust a friend or a servant with a bond, and order them to receive the money and deliver it up to the debtor; and though it be surer to take a receipt on the back of it, yet there are a vast deal of payments made in Scotland, singly on retiring principal bonds without any more; and to disturb parties by reviving these debts, and referring them to their oaths, might be a very bad preparative, and put the lieges to much unnecessary expence. Duplied, You was my agent and doer in all my business, and had access to my papers, and so might viis et modis make yourself master of the bond; and there is nothing more reasonable, than that you should tell how you came by it. The Lords considered he was an agent about the Session, and was trusted by this ignorant woman, and therefore ordained him, before he should depone, to give in a condescendence, who it was that brought the bond to him; to whom he paid the money; who were present; and in what place; with the other circumstances, to see what resemblance of probability his relation has, before he come to depone. There may be a difference between bank-notes and bonds; in the first case, one may safely pay the haver of the note without farther inquiry; but if one has stolen my bond from the creditor, or has found it when accidentally lost, I am not so absolutely secure to take up my bond from such persons, til I know their commission from the creditor, especially when they live in town.
Fol. Dic. v. 2. p. 138. Fountainhall, v. 2. p. 550.
