Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
William Montgomery v. Lord Bargeny
Date: 20 February 1694
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William having got an assignation to a bond due by Bargeny; when he is about to give him a charge of horning, Bargeny desires him to forbear, and, within a few weeks, he would pay him. After this, several months running, a creditor of the cedent's arrests in Bargeny's hands, and pursues a forthcoming; wherein the arrester, as having done the legal diligence first, is preferred. William Montgomery insists against Bargeny on his promise. He defends, that he cannot pay twice; and his promise must be understood in terminis juris, unless it be legally evicted from me by another.
Answered,—I was put in tuto by your promise, not to intimate; which, if I had done, I would have been unquestionably preferable to the arrester; and you being in mora, in not performing your promise, by making a punctual payment, the intervening arrestment cannot excuse you.
The Lords, before answer, ordained Bargeny and Andrew Houston (whom he sent to move William to forbear,) to depone anent the terms in which the promise was made; for, if William was damnified thereby, they ought to repair him.
