Scottish Court of Session Decisions

Subject_1 PRESUMPTION.
Subject_2 DIVISION XII.

Presumption, rite et solenniter actum.

Margaret Carnegy, Relict of Mr John Ramsay, Doctor of Medicine,
v.
James Cowper of Lochblair

Date: 11 February 1711
Case No. No 291.

A discharge of an year's annuity, and all years preceding, imports not a presumption that the same was paid yearly when it fell due, but that all was paid at the date of the discharge, unless the debtor instruct the particular times when the respective payments were made.

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James Cowper of Lochblair being decerned in July 1697 as cautioner for Mr John Ramsay, schoolmaster in Perth, executor confirmed to Doctor Ramsay, to pay to Margaret Carnegy his relict an annuity of 600 merks, conform to her husband's testamentary provision, till 7000 merks, which Lochblair was found to have had of the defunct's effects at Martinmas 1688, and the annualrents thereof from that term were exhausted; Margaret Carnegy charged Lochblair upon the decreet for her annuity from Whitsunday 1708 to Whitsunday 1709, who suspended upon this reason, That the fund thereof was exhausted, and he could be no further liable. For proving exhausted, the suspender produced the charger's discharge of the 600 merks from Whitsunday 1706 to Whitsunday 1707, and for all years and terms preceding.

The Lords found, That the said discharge doth not import a presumption that the annuity was yearly paid when it fell due, but that all was paid at the date of the discharge, and ordained the count and reckoning to proceed accordingly, unless the suspender instruct the particular times when the respective payments were made.

Fol. Dic. v. 2. p. 161. Forbes, p. 494.