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Scottish Court of Session Decisions >>
James Russel, and Others, v Patrick Fraser. [1788] Mor 11390 (13 June 1788)
URL: http://www.bailii.org/scot/cases/ScotCS/1788/Mor2711390-048.html Cite as:
[1788] Mor 11390
Presumption that articles claimed have been accounted upon.
James Russel, and Others, v. Patrick Fraser
Date: 13 June 1788 Case No. No 48.
Payment of a bill presumed from circumstances, tho' the sexennial prescription had not elapsed.
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Fraser granted a promissory note to Alexander Boog, who lived five years and ten months after its date in 1780, without having made any claim upon it. Action, however, for the payment was raised by Russel, and other trustees of the heir of Boog. The defender stated a variety of circumstances, from which it appeared that the debt was already paid; and
Pleaded, It is true, the period of the sexennial prescription was not fully elapsed; but evidence of payment from circnmstances is to be received against every document of debt; Stair, b. 4. tit. 45. § 23.; Bankton, b. 4. tit. 34. § 2. Nor can it make any difference, whether the law has established with respect to such documents a longer or a shorter prescription.
Answered, When there was no other prescription of bills of exchange but that of 40 years, presumptions of payment were sometimes received against such as had stood unretired for a long tract of time, though less than the period of prescription. But the statute of 1772 seems to supersede every arbitrary determination in this matter, and to preclude all presumptions of payment, when the document is unretired, and the term of the statute not elapsed. The present, accordingly, is thought to be the first instance in which such an attempt has occurred.
The Lord Ordinary pronounced this interlocutor: ‘The Lord Ordinary having considered, &c. is of opinion, that the circumstances founded on by the defender afford a strong degree of probability, that the contents of the promissory note libelled on were paid in the manner condescended on by him: But, in respect of difficulties occurring in the case, he does not think it proper for him, judging singly as an Ordinary, to cut down a clear valid obligation remaining in the hands of the creditor, and not of an old standing, upon arguments and presumptions, alone, without legal or direct evidence of its extinction; and therefore repels the defences.‘
But the Court ‘altered the interlocutor, and found sufficient presumptives evidence, that the promissory note libelled had been paid or accounted for by the defender to Boog.’
Lord Ordinary, Eskgrove.Act. Hay.Alt. M. Ross.Clerk, Menzies.
Fac. Col. No. 21. p. 36.
