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Andrew Houston and Adam Mushet, being tacksmen of the Excise, did employ Thomas Rue to be their collector, and gave him a salary of £.30 Sterling for a year. Thereafter he pursued Andrew Houston upon his promise, to give him the like salary for the next year, and in absence obtained him to be holden as confessed and decerned; which being suspended, he obtained protestation, and therefore raised caption, and apprehended Andrew Houston at Wigton, who gave him a bond of 500 merks, and got a discharge; and being charged upon the bond of 500 merks, he suspends on these reasons, That Thomas Rue had granted a general discharge to Adam Mushet, who was his conjunct and correus debendi after the alleged service, which discharged Mushet, and consequently Houston his partner; 2dly, The decreet was for salary, and it was offered to be proved, that Rue (for his malversation) was by warrant from General Monk, excluded from collection that year, and by the discharge of the decreet, and this bond, both of the same date and witnesses, it did appear that this bond was granted for the decreet; and if the decreet was reduced, by the reduction thereof depending, the bond would fall in consequence as granted for the game cause. The charger answered, That he was now not obliged to dispute in relation to the decreet; first, Because the suspender had homologated the same, by taking a discharge thereof, and giving a bond therefor; 2dly, There was not only a homologation, but a transaction upon a reference made by the parties to Baldone, conform to his attestation produced; so that that transaction cannot be recalled upon any pretence, but is the most firm obligatory contract of any. The suspender answered, That his payment making, and taking discharge, was no approbation, nor homologation, but that he might reduce the decreet, and repeat if he had paid, or had been poinded, and so may retain; especially seeing it was done metu carceris, he being taken with caption; and as to the transaction, he denies the same; neither can it be instructed by Baldone's attestation, but by the suspender's oath or writ.
The Lords found that the granting of the bond was no homologation of the decreet, but that he might quarrel the same; and that the giving of the bond was no transaction, if he paid or gave bond for the whole sums contained in the decreet; but found, that if in consideration of the grounds upon which he might quarrel the same, he had gotten an abatement by arbitration, or otherwise, that he could not quarrel the same, and found it only probable by his oath or writ.
