Action refused on a bill which had lain over 30 years. The granter was dead.
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Mary Wallace and others, as executors of the deceased James Finlayson, moved an edict before the Commissaries of Edinburgh, in order to obtain themselves confirmed executors-creditors to John Murray, one of the principal Clerks of Session, on a bill for L. 40, accepted by John Murray 7th August 1724, and payable to James Finlayson, who was an extractor in Dalrymple's office.
Janet Murray, the daughter of John Murray, alleged, That this bill was not a legal document of debt, and could not be sustained as a title of confirmation, as it had lain over for thirty years without diligence done upon it, and had not been homologated by payments of interest, or otherwise: That there were also strong presumptions that it had been paid; for that James Finlayson was in use to receive the clerk's dues, and to pay them to Mr Murray; and if this bill had been really due, he mull have retained payment of it out of these dues.
It was answered: That bills are probative by act of Parliament; and as no prescription of them is established shorter than the long prescription of forty years, they are legal documents of debt within that period. The presumption of payment arising from the long taciturnity, can be of no weight in this case; for James Finlayson, being an extractor in the same office with Mr Murray, was of course much under his subjection, and would not incline either to raise diligence on this bill, or retain payment of it out of Murray's dues of office.
It was alleged, That Mr Murray had, some time before his death, acknowledged the debt to be resting owing; and several witnesses being examined, they deponed negatively.
The Commissaries sustained the objections to the bill, and refused to confirm the movers of the edict. The pursuers applied to the Court of Session by bill of advocation.
‘The Lords refused the bill of advocation, and remitted the cause simpliciter to the Commissaries.’
Reporter, Lord Justice-Clerk.For Murray, Lockhart.
Fac. Col. No 158. p. 281.
