Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Liddell v. Sir David Ogilbie
Date: 9 July 1670
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The deceased Laird of Cullene being about to marry his daughter on Raploch's son, writes in to this Liddell, merchant in Edinburgh, desiring him to send him some velvets and other silks, &c. and obliges him to repay him thankfully; which Liddell does. Then Cullene dies. Liddell pursues his Lady as executrix to her husband, to pay the price of the ware furnished, conform to her husband's obligatory letter; and recovers decreet. On which he charges the Lady and Sir David, now her husband, pro interesse; who suspend on this reason, that the letter, which was the ground of the decreet recovered against her, having miscarried, so that the charger cannot now show the same, they cannot safely pay the sum; seeing in their tutor counts with young Cullene this sum contained in this decreet will not be allowed them, unless they can produce the letter, or say that in the decreet given against the lady, Cullene was also called.
To the which it was Answered,—That the decreet bearing it was given on that letter will be sufficient exoneration to Sir David, and will ever produce allowance to him of that sum, when he comes to count with his pupil; for a decreet bearing the production of a letter, bond, or any other writ, or bearing that it proceeded upon such or such writs, which were seen then by the judge, it is probatio probata, though that these writs cannot be now shown.
Replied,—That a decreet, except the verifications thereof were assigned to him, will never infer exoneration to Sir David, nor work him relief against Cullene; seeing Cullene will say this decreet is nihil ad me, it is res inter alios acta, I was not called to it, and so cannot prejudge me, or bind that debt of my father's on me; and, therefore, if Cullene and his tutors will but declare that he shall allow to this suspender the sum contained in the decreet, he will presently make payment of it.
