Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1678 and 1682.
Alexander Home of Linthill v. Alexander AitkenHead and Andrew Munro
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1678. November 12.—Linthill's father was commissary of the Merse or Berwickshire. Major-general Monro lying there with his regiment, he got a precept from the Estates, drawn upon Linthill's father, for the sum of He accepts it, and gives him a part of it in money, and grants his bond, or ticket, for £1400, which was the remainder thereof, with this quality, that he should pay it, if he got that precept allowed to him when he came to make up his accounts with the public. Ita est, he accordingly got it allowed.
The Lords found Linthill's father's accepting of the public's precept, and getting it allowed, equivalent to payment for an equivalent debt owing to him, though he never got payment thereby; and also decerned in the annualrents since the payment, in regard of his declaration, that, how soon he got payment thereof, he should account for the same: only, because, by the balance of the account, Linthill's father was found super-expended, they allowed him to retain a part proportionally and pro rata effeiring to the other articles of the account, (which will deduce about £200 Scots off the foresaid bond.)
Sir G. Lockhart, in his information for Linthill, used thir words:—It is a wonder to astonishment, that such an umbratile, fictitious, imaginary, and stramineous kind of payment as what is inferred by accepting a precept, shall not only have the force of a real solution, but also infer an obligation upon the acceptor for payment of annualrents, when there was none stipulated, and neither lex nor pactum for annualrents.
Of this decision, as of many others, all the reason that can be given is, quod sic visum est superis. Vide infra, 15th Nov. 1682.
Vol. I. Page 19.
1682.November 15.—Between Alexander Home of Linthill, and Mr Alexander Aitkenhead, and Monro, (mentioned 12th of November 1678;) the Lords, after a long debate, religiously adhered to their former decreet inforo; and found all now proponed either formerly proponed and repelled, or else then competent and omitted; and so repelled it, and refused to reduce their decreet, unless they condescended on nullities, informalities, or trinqueting in false extracting. Vide 8th Dec. 1682, Paton. Yet see the contrary done for the Marquis of Queensberry, 20th Dec. 1682.
