Payment and Consignation how relevant to be proved.
Little v. Hilstones
Date: 13 January 1620 Case No. No 134.
Performance of a written obligation, by payment or delivery of victual, or other fungibles, in terms thereof, probable by witnesses.
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Thomas Duncan suspends his registered bond, made to David Little and his Umquhile spouse, of 220 merks, for the price of 20 bolls of bear bought from them, against the said David, and against Hilstones' executors, to David and umquhile spouse, upon these reasons, David was bound in the bond or contract, he and his spouse, to have delivered the bear, which he never did, and is under present horning for it. Answered, Offers to prove the victual delivered. Admits the allegeance, and ordains letters for summoning of witnesses, and producing of writs, and other probation, and assigns a day. Second reason, The half of the sum is not due to David, who is not executor to his wife, but to Hilstones', (who compeared not.) The Lords declare, if David proves the delivery, they will find the letters orderly proceeded for David, he finding caution to warrant the suspender at the wife's executors' hands.
Clerk, Durie.
Fol. Dic. 2. p. 224. Nicolson, MS. No 540. p. 373.
