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David Burnet v Robert Burnet. [1693] 4 Brn 113 (22 December 1693)
URL: http://www.bailii.org/scot/cases/ScotCS/1693/Brn040113-0263.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
David Burnet v. Robert Burnet
Date: 22 December 1693
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Mersington reported David Burnet, merchant, against Robert Burnet, writer to the signet, his brother. The Lords having balanced the case, whether the payments Robert had made could be ascribed to any other cause of debt than this 3000 merks' bond of provision, (which he quarrelled as null against him, being holograph, and so not probative of its date, and presumed to be made in lecto;) they sustained the ground of the homologation of this bond by the partial payments, though none of them related to this bond, and there were accounts, and other probable evidences produced, to instruct there were other grounds of debt owing by Robert to David, at the time of these payments, to which they were rather to be ascribed than to the bond, which he never acknowledged: but the Lords observed, there was one receipt of £14 Scots, prior to any debt due by Robert to him, except the bond of provision; and that it was most unfavourable in him to shun this, when he had taken course with all the rest, whose bonds were holograph as well as this; therefore, super tota materia, they decerned, and found the presumptive subscription on deathbed elided by the contrary presumptions of homologation; though some of the Lords thought this was too much of a Chancery equity, albeit he was unnatural to his
brother, and ungrateful to his father's memory.
Vol. I. Page 583.
December 29.—The case of Burnet, against his brother Robert, mentioned 22d current, was reconsidered on a bill, and the Lords adhered. Robert cited sundry decisions about homologations; as that it cannot be a homologation in him, who did not then know the right or its defects;—Vid. 6th July 1661, Taylor. 2do. That the homologation must have some relation to the writ homologated, which is not here;—9th February 1672, Pilton. And 3tio. That a deed cannot be said to be a homologation, where it may be attributed to another cause; —12th December 1665, Barns. See also Mr David Thoirs against Ramsay, eodem tempore. But the Lords went on the grounds above mentioned.
