Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
David Seton v. Janet Lucklaw
Date: 10 July 1679
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In the action pursued by David Seton, brother to Carriston, against Janet Lucklaw, for payment of a legacy of 1000 merks, left by one to whom Janet was executor;
Alleged,—Absolvitor, because they had the said David's general discharge.
Replied,—1mo, That when he subscribed that discharge he had not seen the testament, and so knew not of the legacy; and he offered to prove, by her oath, that, at the time of his granting that general discharge, the said legacy was neither actum, tractatum, nor cogitatum among them; and so could not be included.
Newton would not sustain that as relevant and sufficient per se,—that the said legacy acclaimed was not then mentioned or communed on; because it might have been paid before that time: and therefore he found, that we behoved farther to refer to her oath likewise, that the said legacy, as it was not then spoken of, so it was neither paid by her, nor allowed at that time, nor at any time before.
