Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

The Duke of Hamiltoun
v.
Hamilton of Monkland

Date: 29 July 1673

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The Duke and Duchess of Hamiltoun pursue a declarator against Hamiltoun of Monkland, That a bond of £884 sterling, subscribed by Duke James, commissioner, in anno 1646, and left blank in the creditor's name, to have been delivered to Sir James Stuart, who was to advance the money; that the said Sir James caused his correspondent, one Cutler at London, about the same time advance the like sum. Cutler took bond from Duke James, being then in England, for £1060 sterling, which was advanced upon Sir James Stuart's order; and this bond of £884 was either comprehended in it, or there was never any distinct sum advanced therefor. And there being much debated for founding a presumptive probation to take away this bond, and in the contrary;—the Lords, before they would admit any witnesses ex officio, ordained either party to produce all the writs they founded on, and assigned a term to that effect, and granted diligences to either party for summoning such witnesses as they thought fit; to this effect, that, if the Lords, upon perusal of the writs, should find just ground to examine witnesses, the witnesses might be ready without a new term; and the Lords might consider what persons they would allow to be examined as witnesses, of those that should be adduced for either party.

Vol. II, Page 224.