Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
David French v. Cathcart of Drumjoan
Date: 2 January 1696
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Arbruchell reported David French, Writer in Edinburgh, against Cathcart of Drumjoan, for payment of 300 merks contained in his father's bond in 1656, granted to William Mitchell, to whom David had confirmed himself executor. Alleged,—This was a most suspected contrivance, seeing he offered to prove, by the pursuer's oath, he got this bond from Mr James Cathcart, now of Carbiston; which being acknowledged, then he offered to prove, that Mr Francis Cathcart, Mr James's father, was agent for the debtor; and, it is to be presumed it was lying beside him as his client's paper, being paid and retired; and that David French and Carbiston had made a bargain betwixt them to divide the spoil.
The Lords remembered that Mary Erskine, relict of Robert Kennedy, pursuing Cullaine, they had found that a bond lying beside Robert, (who was Cullaine's agent,) with a blank assignation thereto, was to be presumed to be a retired writ for Cullaine's behoof; therefore they ordained David French, ex officio, to depone if he got it from Carbiston, or on what terms; and he confessing, then, before answer, appointed Carbiston to be examined, if he found it amongst his father's papers, and if he has any documents or evidences to instruct to whom it belonged, or how he came by it; and allowed the defender to prove that Francis Cathcart was his father's ordinary agent. Though this appears dangerous, to take away clear bonds on presumptions, yet the date being near forty years old, and purchased in by an agent, the Lords thought the truth might be brought to light by such a trial and expiscation.
