Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Thomas Moncur v. James Douglas of Inchmarto
Date: 14 January 1664
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Mr. James Douglas of Inchmarto, in 1660, by his bond obliges him to pay to James Petrie, and Janet Findlay his spouse, indwellers in the Wood-End of Glencomon, the sum of 400 merks, with L.100 of expenses. James Petrie, again, by his back-bond granted to Inchmarto, obliges him, that if Sir William Douglas of Glenbervie, and James Douglas of Stampeth, his father-in-law, obtain decreet against him for the said sum of 400 merks, grounded upon a tack; that then, and in that case, James Petrie shall suit no payment upon this bond of Inchmarto's; but re-deliver him it. Whereupon Inchmarto granted Glenbervie his bond for the said sum of 400 merks, in case he should be found to have best right thereto. Glenbervie thereupon raises a summons against Inchmarto and James Petrie for payment making to him of the said sum of 400 merks. While this is depending, James Petrie assigns the bond he had from Inchmarto for the said 400 merks, to Thomas Moncur, son natural to Thomas Moncur, goldsmith in Aberdeen. He upon his assignation raises letters of horning, and charges Inchmarto to pay the said 400 merks to him. Inchmarto suspends upon double poinding, and concludes that he may not be liable in double or twice payment; seeing he is willing to pay to any of the two persons that shall be found to have best right thereto. The double distress he instructs by James Petrie's back-bond to him; by his bond he has granted to Glenbervie; and by the summons raised at Glenbervie's instance, for payment making of the same sum as yet depending; which all would be good reasons of suspension against the cedent; and, therefore, also against his assignee; especially here, where the assignation is to the cedent's behoof, as he offers to prove by his oath of verity: craves, therefore, the letters be suspended, while the action intented at Glenbervie's instance be determined. This suspension being called, there was produced for the charger the registred bond and the assignation. To the reason of suspension it was answered by the charger's procurators, that the same ought not to be respected, because by the back-bond, the charger's cedent is only obliged to refund the sums, in case Glenbervie should recover decreet before the late Commissioners; which he has never done; igitur. 2do, The charger, in case Glenbervie was ready to insist for his foresaid summons, was willing to dispute with him. 3tio, Offers to the suspender (he paying the sum charged for) to grant him a discharge, with absolute warrandice at all hands.
All which being considered by the Lords, they find the letters orderly proceeded, and ordain them to be put to farther execution; ay and while the suspender pay to the charger the said 400 merks, with the L.100 of expenses. Always reserving to Glenbervie his action upon the tack for the said sum, against the said James Petrie, the charger's cedent, as accords of the law.
Suspender, Patrick Fraser.Alt. Mr. Andrew Birnie.
Signet MS. No. 71, folio 27.
