Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Burnet v. -
Date: 15 November 1662
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In this case, found that an executor pursuing for a debt owing to the defunct testator, who was neither merchant, venturer, nor factor: and the debtor alleging that, by the testator's own count-book, the debt is paid him in his lifetime, which is equivalent to a discharge;
Replied,—That though in other cases, privata scriptura facit fidem contra scribentem, yet to force the executor to produce the testator's count-book, to take away a debt constituted by writ, were hard, he never being factor, merchant, &c.; for the case was put as, if the testator had left a discharge subscribed, beside himself, undelivered, can any in reason thereon think the debt is discharged? Notwithstanding whereof it was found that, by the testator's count-book, the debt was discharged, though the bond was not retired.
