Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Dickson
v.
John Hume of Slegden

Date: 22 December 1627

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In an action, pursued by one Dickson, as heir to his father, against John Hume of Slegden, for payment of the sum of 8000 merks payable to his father by the said defender; and the said defender excepting upon a discharge of the sum made to him by the defunct, which he produced: and the pursuer replying, that that discharge was consigned in the notary's hands who writ the same, to remain with him until the defender had perfected an obligation of so much of the said sum as was resting unpaid, that the obligation might be delivered to the defunct, and the discharge to the defender; and being then blank in the sum, unfilled up therein, they were both consigned in the notary's hands, to be kept by him until the sum should be inserted in the bond; and that thereafter the one party should take up the bond, and the other the discharge; likeas the notary had the blank-bond, subscribed by the defender, yet in his hands, and that the discharge was riven out of the notary's hands violently by another person, who had delivered the same to the party:—This allegeance was found relevant to be proven by the notary, depositar, and witnesses inserted, their depositions, and by the declaration of the person who was the away-taker of the discharge violently; and was found proven by their declarations: neither was the oath of the party, haver of the discharge, and in whose favours it was granted, found necessary to be taken in this probation; but there was also used for proving of the foresaid reply, a writ produced, subscribed by the defender, haver of the discharge, granting the receiving of the discharge from the notary, and obliging him to warrant him thereof at all hands, and of all imputation which the notary might sustain by his delivery of his discharge to him; wrhich writ the Lords found imported as much as that he had only borrowed the writ from the notary, and was a confession that it had not become his evident; likeas the blank-bond was produced by the notary; which the Lords found, with the depositions foresaid, clearly proved the reply. And, it is to be considered, that, in this process, before the allegeance was discussed and found relevant, the foresaid notary and witnesses, and he who took away the discharge, were ordained to be examined ex officio. And being examined ex officio, and thereafter the parties being heard upon the relevancy of the exception and answer, the said reply was found relevant, and also found proven by the same depositions taken ex officio, and by the foresaid writs used in supplement thereof.

Act. Nicolson and Craig. Alt. Hope and Belshes. Gibson, Clerk.

Vid. 22d February 1627, Williamson, and the other cases there noted.

Page 323.