Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
James Cleilland and James Scot v. Mr John Bonar.
1669.
July.
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This action being called in July, 1669, it was alleged for Bonar, defender, by Cunyghame, Harper, Stewart, and myself, his procurators, that no process can be sustained against him, because one of the assignees, viz. Edward Cleilland, is deceased, and his testament is not yet confirmed; and so, no active title to pursue the defender on. Vide infra, 12th January, 1678, Dundas against Holborn.
Answer, Maxwell and Mr. Archibald Campbell, procurators for the pursuers,—That the allegeance above written ought to be repelled, in respect there are two others of the assignees living, at whose instance, as well as of this Edward Cleilland, this action is intented and pursued, viz. James Scot and Ja. Cleilland, son to the said Edward; and craved process at their instance, as assignees yet on life.
Which allegeance above written, and answer thereto, the Lords having considered, they declared before answer thereto, that they would hear both parties farther. And their foresaid action being again called, the pursuer's procurators declared they would restrict their pursuit pro loco, and insist primo for the two parts of the debt above written, due and payable to the two pursuers living.
Whereto it was answered for the defender, that no respect can be had to the pretended ticket produced for them, because the same is only a declaration, and noways obligatory, and so can furnish no action in law against him.*
Whereunto it was replied for the pursuer, that in fortification of the ticket above written, produced by them, they offered them to prove that either the defender got money to pay the quarters contained in the said ticket, and did not pay the same; or otherwise was quartered upon some other person, and not on Margaret Wardrop the pursuer's cedent; and so the defender must be liable in payment of the quarterings above written.
Which reply the Lords, having considered, in regard of the long time that has intervened since the said quartering, by their interlocutor, found the said reply relevant to be proven by the said Mr. John Bonar defender, his oath of verity
* Nota, the act of indemnity in 1662, seems also to include and take away this debt.
simpliciter, and assigned the day of to his procurators to produce him, with certification, &c. who protested for a qualified oath, and the pursuer's procurators in the contrary. At the which term the defender compearing, he deponed negativè, that he got no money from the States to pay the foresaid quarters, and that he had no other quarters but with the said Margaret, and that he never promised her payment thereof; but thinks if he had gotten money to pay, that he was in duty obliged to have done it; and that he never knew any of the officers there at that time pay any money to them on whom they were quartered, for their quarters, &c.
Which oath and deposition the Lords having advised, they found thereby the said Mr. John Bonar was no way liable, nor subject in payment of the said sum acclaimed by the pursuers from him, as being noways their debtor nor their cedent's; and therefore simpliciter assoilyie him from the haill points of the summons, &c. and decern and declare him free and quite from the payment of the sum acclaimed, in all time coming.
