Scottish Court of Session Decisions

Subject_1 PRESUMPTION.

Goldie
v.
Creditors of Poldean

1737, Jan. 25.
Case No. No. 9.

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There were here two questions; The first; Since the 300 merks bond, chirographum cpud creditorem non repertum, whether it is presumed solutum properly so speaking by payment or satisfaction, or only in that sense, that no suit could be competent upon it? 2dly, Whether the whole L.84 sterling could now be claimed, or only the restricted sum of 300 merks? The Lords found the 300 merks not presumed paid by Poldean, and found the whole L.84 sterling due, 23d December 1736.—25th January 1737 The Lords adhered to the first point, (after long reasoning) finding that though the 300 merks bond was not extant in the creditors hands, yet payment was not presumed. Royston was once of a different opinion, but altered upon an observation that chirograpkum apud creditorem, non repertum, &c. only held where there was but one instrument of debt, and retiring of that alone destroyed the creditors ground of action, but not where there are more original instruments of the same grounds of debt, which is the case of bonds of corroboration; and here not only was it necessary to preserve the 300 merks bond, but also to preserve the creditors back-bond to make it have any connection with the L.84 bond,—and he voted for the interlocutor. We also adhered to the second point, but had little reasoning About it.