Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Sir William Lockhart of Carstairs
v.
Sir William Thomson,

and

Sir William Thomson
v.
David Weems

1683. Dec.

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In a pursuit, at the instance of Sir William Lockhart against Sir William Thomson, upon a precept granted by him to the pursuer, acknowledging the receipt of 360 merks, and obliging himself to deliver a precept for the same, from the Earl of Crawfurd, lord treasurer, to the pursuer, whose father was one of the public receivers, or else to refund the money;—Alleged for the defender, The delivery of the precept, now that the lord treasurer is dead and exauctorate, is factum imprestabile; in lieu whereof, nothing but damage and interest can be claimed; and the pursuer could qualify no damage he sustains through the want of the precept, in regard the Exchequer is debtor aliunde to him in a greater balance than he has any hopes to get payment of: so that, in effect, nihil deest by the want of the precept. The Lords repelled the defence, and decerned. The contrary found in another case for Sir William Thomson against David Weems.

Page 43, No. 191.