Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Sir Walter Seton v. Cornwall of Bonhard
1692.
November30,and
December9.
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Nov. 30.—Sir Walter Setton against Cornwall of Bonhard. The Lords found the assignation given by old Sir Walter to his son, bearing to all actions and others competent to him, was not restrictive, but extended also to that reduction raised by old Sir Walter, though not specially assigned. And thought that the said Sir Walter's accepting a disposition of the lands with the burden of that bond, containing the said 25,000 merks, was not such a homologation as did cut off Sir Walter from quarrelling that bond, as being the result of an account betwixt them, in which account there were gross and palpable errors. But in regard the bond did not relate to the account, but bore borrowed money, therefore, they found it only probable scripto et juramento of Bonhard, that the cause of the bond was a fitted account. And that being proven or acknowledged, then the Lords would consider what should be comprehended under errors; if only errors in calculo were to be meant, or even irrelevant and controverted articles; which the Lords thought hard to reconsider after a fitted account, else there should be no finis litium.
Vol. I. page 525.
December 9.—Cornwall of Bonhard against Sir Walter Seton, mentioned 3d Nov. last. The Lords found it proven that the bond was the result of an account, because, though the bond bore borrowed money, yet there was an account produced of the same date with the bond, and before the same witnesses, and which at the foot was subscribed, and bore that a bond was then granted for the balance. But having considered the homologations re-iterated since granting of the said bond, they found they were so plain, that they cutted off all quarrelling and review of the said account, upon any pretence, except errors in calculo, and summation of the articles and pages. The President urged the forbearing that point, whether he might, notwithstanding of these homologations, be heard against relevant, exorbitant, false, or unjust articles. But the generality of the Lords thought him excluded from all but only errors in calculo; seeing old Sir Walter, who was a judicious man, did not quarrel, nor discover them in fourteen years time, but during all that space homologated them.
