Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 9 December 1687
The Earl of Southesk v. William Carnegy's Representatives and the Laird of Balnamoon
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The Earl of Southesk against the Representatives of William Carnegy, writer, and the Laird of Balnamoon, donatar to his escheat. The three points were:—
1mo, If it was a sufficient instruction in him as factor, to produce only retired bonds, without discharges from the creditors: which Southesk contended was not enough.
2do, If he could crave allowance of debts as paid by him, when he only produces discharges acknowledging the receipt of the money from the Earl, and not from him. He Alleged, from their being in his hand, it must be presumed he had paid them. Answered,—He was my Lord's writer and agent, as well as his factor, and so might get them that way.
3tio, If he ought to have allowance of counts paid by him for my Lord, where he produces no instruction of the debt, but only the alleged creditor's discharge.
The Lord Boyn, auditor, having reported these points, anent the bonds retired by William Carnegy, without any other instruction of payment of the sums, and anent the discharges granted, bearing the sums to be received from the Earl of Southesk; the Lords find, that these articles being marked, instructed, or allowed by the arbiters in the former count, that the same are now to be allowed, unless the Earl will offer to redargue any of the articles by positive probation; in which case they remit to the auditor to hear the parties upon the grounds of redarguing any of these articles: and sustain the payments of house-maills, and stabler-accounts, unless the Earl will redargue the same.
What moved the Lords, were thir two grounds, 1mo, That the arbiters had marked these articles instructed. But this was only, in contradistinction, to allow it, but not to hinder the quarrelling the validity and relevancy of the instruction. 2do, That the Earl used his count-book as a charge; and so behoved to take it in totum. But William Carnegy, in his own time, had subjected his discharge to examination.
Southesk having reclaimed against this interlocutor, the Lords ordained him to be heard in presence.
