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Thorntoun as assignee by Patrick Seaton, having obtained decreet before the Bailies of Edinburgh against William Miln, he suspends and alleges compensation, upon a count due by the cedent, and a ticket subjoined by him, acknowledging the count to be due, subscribed before witnesses, which must prove against this assignee. It was answered, That the ticket wanted a date, and so could not not instruct itself to be anterior to the assignation. It was replied, That it was offered to be proved by the witnesses inserted, that it was truly subscribed before the assignation.
Which the Lords sustained.
Fol. Dic. v. 2. p. 215. Stair, v. 1. p. 291.*** Gilmour reports this case:
1665. June.—Richard Thorntoun an Englishman, as having right from Patrick Seaton to a ticket of L. 641 granted by William Miln to him, for certain merchant-ware, obtains a decreet before the Bailies of Edinburgh for payment, against the said William Miln, who suspends and intents a reduction upon this reason, that the Bailies had repelled a most relevant reason of compensation, founded upon a subscribed account, by which the said Patrick Seaton acknowledges himself debtor to the suspender for L. 126, for merchant-ware, also expressed in the count, dated in March 1663, whereas the assignation was not intimated till the seventh day of May thereafter. To which it was answered, That the Bailies did no wrong, because the ticket subjoined to the end of the count had no date, and consequently was null, especially being written with another hand than the count itself; and though the date of the furnishing was set down on the head of the count, yet that date could not be interpreted the date of the obligation subjoined. It was replied, and offered to be proved by the witnesses, subscribers of the ticket, That it was truly subscribed of the date of the count.
Which the Lordsa found relevant hoc loco, notwithstanding of the decreet.
Gilmour, No 149. p. 107.Newbyth also reports this case:
1665. June 29.—In a pursuit betwixt Richard Thorntoun and William Miln, upon a ticket which wanted a date, the same being quarrelled as null, the Lords found the date of the ticket might be supplied, and proved by the witnesses inserted.
