Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
George Johnston v. James Twedie and Walter Twedie
Date: 16 January 1664
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In anno 1656, James Twedie in Hairston, as principal, and Walter Twedie, his cautioner, by their bond of corroboration, obliges them to pay to Geo. Johnston in Carryserane, the sum of 800 merks. This bond he registrates, and thereon charges them with horning; which charge they suspend, because the charger, by his ticket or discharge in 1657, granted him to have received payment of 300 merks, in part of the foresaid principal sum of 800 merks; and that by accepting a bond of 300 merks, wherein Jo. Grege obliged him to pay to Ja. Twedie, or his, the sum of 300 merks, which the said Ja. assigned him to. Then again, the same charger, by his other ticket in 1659, grants him to have received from the suspender the sum of L.187, also in part of payment of the foresaid principal sum contained in the said bond of corroboration; and therefore discharged him thereof, pro tanto. And for the remainder of the aforesaid principal sum, they had truly paid the same, conform to precepts drawn upon them by the charger; which they referred to his oath of verity. Igitur, this charge being for the said whole sum of 800 merks, ought to be suspended.
At the calling of this suspension, there is produced for the suspenders the said two discharges, together with another, whereby the charger grants him to have received L.66, and that in contentation of his annual rents owing him for the said sum by Ja. Twedie. For the charger there is produced the bond of corroboration, with the letters of horning and executions thereof; and alleged by them that the discharges produced ought not be respected to infer any liberation from the said charge pro tanto, because they discharged sums above L.100; and, not being holograph, are not subscribed by four witnesses.
In respect of which allegeance, the Lords would have no respect to the said discharges: whereupon the suspenders were content to refer the truth of the payment contained in the said discharges to the charger's oath of verity simpliciter. For which effect a day having been taken to produce him, he deponed he had indeed received L.387 in part of payment of the foresaid principal sum of 800 merks, but no more. In regard of which deposition, the Lords suspended the letters as to the said L.387; and found them orderly proceeded as to the rest.
Act. Suspender, Sir Thomas Wallace.Alt. Mr. David Dinmuire.
Signet MS. No. 77, folio 30.
