Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Sir John Gibsone's Lady v. James Fleeming her Son
Date: 17 November 1661
Click here to view a pdf copy of this documet : PDF Copy
There fell in a debate betwixt Sir John Gibsone's Lady, and Ja. Fleeming her son. The case was, Sir John's Lady paid to Patrick Scot L.100 Sterling, resting by Malcolme Fleeming her husband by bond, and did neither keep the bond uncancelled, nor yet take an assignation thereto. She being executrix to her said husband, and craving allowance of this in her summons of exoneration against her sons, to whom she was countable for her intromission; she alleged that, officium nemini debet esse damnosum, and that she truly paid that sum to Patrick Scot after her husband's decease, and produced a declaration under his hand to that effect. On the other hand it was contended, quod non regulariter et jure fit, id dolo præsumitur factum esse; she ought not to have paid it without a sentence, and she should have taken assignation thereto: but the bond being cancelled, et apud debitorem repertum, inducit liberationem debiti. The Lords found in the Inner-House, that she ought not to have allowance of it, in respect it was cancelled.
