Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Alexander Burnet of Carlips, and Margaret Hay v. Jo Scot, William Burnet of Barns, and Captain John Veitch.
Date: 8 December 1663
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Mr. William Burnet of Barns, as principal, and Captain Jo. Veitch, in Easterdaick, as cautioner, in anno 1654, bind and oblige them to repay the sum of 700 merks, borrowed by them from Mr. Alexander Burnet of Carlips, advocate. In anno 1655 Jo. Scot grants to the same Mr. Alexander his bond for 1000 merks. Mr. Alexander dies in 1657. His eldest son, Alexander Burnet, serves and retours himself heir to his father; then confirms his father's testament, wherein his mother, Margaret Hay, is nominated to him tutrix testamentar; then he nominates sole executor, and universal legatar, and intromitter with his goods and geir; item, therein are contained the foresaid bonds and debts. Thus, having acquired a right, he, and his mother as tutrix, pursue the said persons for payment-making to them of the said sums of money. For instructing of the summons, there are produced the extracts of the said three registered bonds; then an extract of his service, or retour, out of O. S. L. Chancellary, under the subscription of Jo. Acheson, Depute to Sir William Ker of Hadden, Director to the Chancellary; then his father's confirmed testament, under the subscription of Mr. Alexander Swinton, clerk to the commissariot of Edinburgh. Compears Mr. George Norvell, for Mr. William Burnet and Captain Veitch, and then passes from his compearance. Compears Jo. Scott, by his procurator, and alleges that he ought to be assoilyied from the points of the said summons, because he offered him to prove that the sum libelled against him was assigned by the pursuer's father to Sir Michael Nesmith of Posso, and his assignation intimated to the said defender; and that, accordingly, he had made payment thereof to Posso.
Which allegeance the Lords found relevant, and assigned a day for proving the same: at the coming of which, because he failyied therein, the term was circumduced against him, and decreet given, as also against all the rest, ordaining them to make payment of the said sums to the pursuer.
Act. Mr. Robert Hay.Alt. Mr. Robert Sinclair.
Signet MS. No. 26, folio 9.
