Payments stated in an account-book, admitted to do away the effect of a bond.
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Joseph Reid, Major of Carlile, and merchant there, having granted a note to Maxwell and Mulliken, declaring, That he had their bond for L. 150, for which sum he should be countable to them, or their order; and having afterwards counted with Mulliken, and got a general discharge from him without getting up the note, (which was in Maxwell's hand) or any obligement to deliver the same, Maxwell pursued the Major.
Alleged for the defender; That Maxwell and Mulliken being socii and partners in a drove of cows upon the road, any discharge of the one to that subject must oblige both. 2do, The note being granted in England, where payment of the sums is proveable by witnesses, it ought to be sustained here.
Answered; The note is neither discharged nor retired; and there is no society in an obligation, 2do, Though deeds done in England, according to the solemnity there, are valid though wanting the formalities used in Scotland, yet the modus probationis, and effects of rights, are to be governed by our own law.
“The Lords, ex officio, before answer, ordained the Major's count-books to be inspected as to the payment of the debt to Mulliken, and witnesses to be examined in fortification of the said books;” for the discharge was vitiated in the date, and not insisted in; but payment in general proponed. And it was informed that the defender was cheated and circumvened by the drovers, to whom he had paid the money in parcels, and neglected to retire his note.
