Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ROBERT MACGILL, LORD FOORD.

Aytoune of Inchdernie
v.
David Aytoune

Date: 12 July 1649

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In the action at the instance of Inchdernie, as assignee to the heirs of umquhile Mr James Aytoune, his uncle, against his brother, Mr David Aytoune;—it was excepted, That he cannot pay to the pursuer the 500 merks contained in his bond made to his uncle, because he offers him to prove that he paid as much for his uncle, and relieved his bond; the which must compense the sum acclaimed. The which the Lords would not admit, unless he instructed that the sum paid by him, since the date of his own bond, was at his uncle's direction, and out of the defender his own money. Likeas, he must have assignation thereto, and comes properly against the cedents. Yet, it may be said, “Let Inchdernie, after lawful distress, seek his warrant.”

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