Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Alexander Gibsone, Helen Fleming, &c v. Sir Patrick Maxwell, of Newark
Date: 12 December 1663
Click here to view a pdf copy of this documet : PDF Copy
Sir Pat. Maxwell, of Newark, by his bond in anno 1649, grants him to have borrowed and received from Elisabeth Fleming, relict of Malcolm Fleming, merchant burgess in Edenburgh, 12000 merks; and binds and obliges him to repay the same to her, for the use and behoof of her four daughters, Elizab. Helen, Janet, and Agnes Flemings, as their tutrix, each of them their proportional share of 3000 merks. Elizabeth, the mother, marries Sir Jo. Gibsone, elder of Pentland. Helen, one of her daughters, marries his son, Mr. Alexander Gibsone. Elizabeth is married to Robert Baird, and Agnes to Dr. David Hay. Mr. Alexander Gibsone charges Newark to make payment to him of the sum of 3000 merks, as the equal part of the said principal sum falling to his spouse. He suspends, on this reason, that there was a transaction betwixt William, Lord Cochran, and the suspender, whereby Cochran did engage to satisfy the said principal sum, and the whole byrun annuals thereof: according to which agreement, he paid Bailie Baird and Dr. Hay, whatsoever they could claim by their said wives; as their discharges thereof produced will verify. Mr. Alexander Gibsone he also pays: only in his discharge he acknowledges the receipt of 3110 merks, in part of payment of his wife's proportion; but prejudice to him to crave what further, after count and reckoning, should be found to him to be due. Whereupon, the suspender intented action, both against Cochran and Mr. Alexander, of count and reckoning, to the effect he might have known if any thing was yet resting of the said principal sum, yea or not: and, therefore, this being depending; till such time it be put to a close, all execution at Mr. Alexanders instance ought to be superseded. At the calling of this suspension, Mr. Alexander, by his procurator, gave in a declared charge, declaring that of the whole 3000 merks charged for, he finds now only L.440 resting owing, and all the rest to be satisfied, so that he restricts his charge to the said L.440. It being alleged by the suspender's advocate that he behoved to count and reckon, it was answered, that no count and reckoning could be granted, seeing the charge is liquid, unless the suspender would allege payment of the sums charged for; which payment in a suspension must be verified instanter, either by a discharge vel juramento of the charger.
Replied for the suspender,—That the said answer ought to be repelled, because Mr. Alexander, in his discharge, offers to count. My Lord Cochran's procurator declares he refused to count. All which being considered by the Lords, they suspended simpliciter the letters for the whole sums charged for, except allenarly the said L.440 given up in the declared charge, for which they find the letters orderly proceeded, and ordain them to have further execution, aye and while the same be paid.
Susp. Mr. William Maxwell.Alt. Mr. George Mackeinzie, Lord Cochran, Sir Thomas Wallace.
Signet MS. No. 36, folio 11.
