Scottish Court of Session Decisions

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

John Jolly
v.
The Laird of Lamington

Date: 13 February 1685

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In a process of forthcoming, at the instance of one Jolly, against the Laird of Lamington, as debtor to Robert Baillie, the pursuer's debtor, compearance being made for Theodore Montgomery, who had right by assignation, intimated before the arrestment; the pursuer proved, by the assignee's oath, that assignation was a trust for Robert Baillie's behoof; after which Lamington, having taken a discharge from Theodore, and proponed upon the same, the Lords found, that Lamington was in mala fide to disappoint the arrester, by making voluntary payment to the assignee, after he knew the assignation to be trust, and after the matter was litigious betwixt the assignee and arrester; and therefore decerned in the forthcoming.—February 1685.

It was afterwards alleged for Lamington, That the discharge was granted before Theodore gave his oath; and Lamington protested against his deponing, as being denuded. Answered, The defender was in mala fide, after the arrestment, to take a discharge, and ought to have suspended upon multiplepoinding; 2. The defender's oath of calumny is craved, that the discharge is not of the date it bears, and, being falsum in data quam præ se fert, must at best be looked upon but as blank in the date; so that the defender must prove it was of a date anterior to Theodore's deponing. The Lords sustained both replies; and found, that the defender could not take a discharge in prejudice of the pursuer, after the matter was litigious.—February 1685.

Page 16, No. 84.