Payment and Consignation how relevant to be proved.
Hay v. -
Date: 1 July 1626 Case No. No 140.
An alleged payment of 5 merks in name of annualrent, found only probable by writ or oath of party, because it tended to invalidate a poinding and frustrate the execution of an obligation up on which the poinding was founded.
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In a spuilzie pursued by one Hay in Haddington contra ——, an exception of poinding being proponed, it was replied, That the annualrent of a term after the poinding was paid by the pursuer to the excipient for that sum for the which the poinding was deduced, whereby he could not poind for the principal sum before that term, for the which the annual was paid; and which the pursuer offered to prove by witnesses, and contended, That the same was probable by witnesses, seeing the matter was of small importance; for the principal sum, whereupon the poinding was deduced, was only 100 merks, and the term's profit received was allenarly five merks, and so was very admissible to be proved by witnesses. The Lords nevertheless found, That payment was only probable by writ or oath of party, seeing it tended to take away the poinding, and frustrate the execution of the obligation whereupon the poinding was used, and to make the excipient a spuilzier; and would not sustain the payment to be proved by witnesses.
Act. Cockburn.Alt. ——.Clerk, Hay.
Fol. Dic. v. 2. p. 223. Durie, p. 207.
*** A similar decision was pronounced, 4th July 1632, Dalrymple against Closeburn, No 174. p. 9856. voce Passive Title.
