Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
John Elphingston and the Master of Balmerino v. The Earl of Lothian
1679 and 1680.
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1679. January 24.—In the action John Elphingston and the Master of Balmerino against the Earl of Lothian, for payment of a sum contained in his father's bond; alleged,—It was a public debt, and never a delivered evident ; and James Chalmers, advocate, found it among Sir Thomas Nicolson his master's papers, blank in the creditors' name, with a memorandum about it that it belonged to Balmerino.
Sir Thomas's heirs also appeared, and craved to be preferred thereto.
The Lords repelled (the Nicolsons) their right; and, before answer to Balmerino's claim, ordain the witnesses inserted in the bond (if alive) to be examined, where and when it was subscribed, and what the parties designed at the time, and what was the cause of the granting the said bond. And also ordain Mi-Mark Cassie of Cockpen, the Lord Jedburgh, Campbell of Cesnock and others, to be examined if this bond was ever spoken of or mentioned by Balmerino, the time of the treaty and communing betwixt him and old Lothian; and whether Balmerino refused to subscribe a general discharge, because this bond was not excepted therefrom. Vide 10th December 1680.
Vol. I. Page 36.
1680. December 10. In Bahnerino's pursuit against the Earl of Lothian (24th Jan. 1679,) the probation being this day advised, the Lords found that the bond of 20,000 merks was ab initio blank, and that it was unwarrantably filled up in Balmerino's name, and unjustly delivered up by James Chalmer, advocate, being found by him among his master Sir Thomas Nicolson's papers. And seeing, by the depositions of the witnesses examined ex officio, it does not appear that either it was for a true onerous cause, or what were the terms of the depositation, the Lords find the said bond void and null, and suspend the letters simpliciter; and assoilyie the Earl of Lothian from it.
