Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Sir Wm Fleming, Commissary of Glasgow, v. Mr Wm. Nimmo, Commissary Clerk.
1672.
December.
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About this same time, there was managed with great heat, an improbation pursued by Sir William Fleming, Commissary of Glasgow, against Mr. William Nimmo, sometime Commissary Clerk there; wherein the case was; the Commissary Clerk being addebted in a small sum of money to Sir William, Sir William pursues him for the same: wherein Nimmo alleged it was paid and discharged, but the discharge had miscarried, and therefore referred the truth of his allegeance to the Commissary's oath; who swore positive, it was yet owing. Nimmo in all companies did not stick to assert the Commissary had perjured himself; whereupon the Commissary cites him before the secret council for a defamer and slanderer; there he offers to verify it, and so could not be punished, and produces a discharge of that debt under the Commissary's own hand before his oath. The Commissary storms and offers to improve it as false. The Council sends them to the Judge-Ordinary. There are two witnesses at it; the one of them Sir William's man, who being examined by the Lords, denies his subscription; the other, Mr. Nimmo's man, upon oath, astructed the truth of the subscription.
The Lords, by a kind of trysting interlocutor, assoilyied both parties hinc inde, the one from falsehood, and the other from calumny; only found the discharge null, and therefore ordained Mr. Nimmo to pay the sum sworn by the Commissary to be owing: which seems very contradictory. It was thought by many the discharge was a true deed, and though the Commissary was a person of integrity and honour, (which was the great cause of the Lords their decision,) yet it was wondered how he forgot it so soon, seeing probabilis oblivio in facto proprio recenti non cadit. This interlocutor may seem strange, quia inter verum et falsum non datur medium. See 15th December 1680, Arbuthnot of Knox.
