Scottish Court of Session Decisions

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

Captain Dundass
v.
Lieutenant-General Holburn

Date: 11 January 1678

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Captain Dundass pursues Lieutenant-General Holburn for the levy-money of a company levied in anno 1648, whereof Holburn was colonel: and each company had a locality; wherein Dundass his locality fell in Selkirk; with whom he had agreed for £40 for each soldier; and that Holburn had uplifted the levy money, and the free profit of the company: which was sustained relevant. But the question arose as to the manner of probation: The pursuer offered to prove it by the defender's receipts and subscribed accounts with the commissaries or quarter-masters.

The defender alleged, That, by the known custom among soldiers, the staff-officers count for the whole regiment; whereof every inferior officer receives his share without a discharge; and, therefore, it is only probable by his oath, that he did uplift and retain the pursuer's share; otherwise, the counts with commissaries, or quarter-masters, or collectors of shires, might make all considerable officers liable for the pay of their regiments; which were of dangerous consequence now, after thirty years.

The Lords found the foresaid receipts not to infer a necessity to produce discharges; but that, in regard of the custom, soldiers' payment was presumed, unless it had been questioned de recenti; and that it was now only probable, by the defender's oath, that he received the levy money and repaid it not.

Vol. II, Page 590.