Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Elizabeth Fullarton v. Hugh Wallace of Ingliston
Date: 21 July 1702
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Elizabeth Fullarton, Lady Cairnhill, being fined in 1682, in 100 sterling, for conventicles and other church irregularities, she grants bond to one Ogilvie, the procurator-fiscal, with her brother Dreghorn, as cautioner for £50 sterling of it, and gets a discharge of the date of the bond: and, thereafter, pays in the said £50 to Hugh Wallace of Ingliston, then cash-keeper, and obtains his discharge of the bond; and now pursues him for repetition of the said sum, on the 25th Act of Parliament 1695, ordaining all these fines to be restored.
Alleged for Ingliston; 1mo, That the bond bears borrowed money, and so non constat it was for a fine; 2do, The said Act founds only repetition of such fines as were paid to donatars, but here there was no donatar; 3tio, Ingliston counted for all these fines to the Treasury, and obtained their act of exoneration and discharge.
Answered,—To the first, Though the bond bear no relation to a fine, yet it is obvious that was the true cause of the bond; for the discharge of the fine is of the same individual date with the bond, and the same writer and witnesses, so they were the mutual causes the one of the other. As to the second, the Act of Parliament is opponed, not only mentioning donatars, but also other intromitters; which will comprehend this defender. To the third, A general discharge will not exoner, unless the special account bear this fine among the rest.
The Lords repelled the first two defences, and found the bond was for the fine, and that he was in the case of the Act of Parliament, though he was not a donatar; but as to the third, before answer, ordained Ingliston, the defender, to produce his discharge, or any other evidences he would found on to instruct his payment of this fine to the Exchequer; for, if he had truly counted for it, and paid it in, the Lords thought there was no reason to make him liable to repeat, give it back, or pay it over again.
