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.
Lieutenant John Creichton v. The Earl of Eglington
Date: 16 January 1705
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The Earl being debtor to Mr Hugh Montgomery, his brother, in the sum of 2000 merks, by bond, in January 1689, Mr Hugh assigns this to John Creichton: who charging the Earl, he suspends, That he had paid 1800 merks of it; in so far as his said brother, before the assignation, or at least before the intimation, had drawn a bill upon him for that sum, and which he had accepted and paid.
Answered,—The sum in the bill nowise meets the bond charged on, but relates expressly to a letter of advice; which letter bears that he had drawn a bill on him for £100 sterling, for which he had his lordship's bond; and if he made good payment, this should be a discharge to him; so the bill relates to another bond of œ100 sterling, seeing his accepting and paying the bill with that qualified advice clearly acknowledges that the Earl was debtor to his said brother in a separate bond of œ100, besides this 2000 merks. Likeas, the bill is before the term of payment of the said 2000 merks bond; and it is neither probable nor presumable that he would draw a bill to pay before it were due.
Replied,—The letter of advice instructed no different debt: For, he that is owing 2000 merks, is certainly owing 1800 merks, the lesser sum being comprehended sub majore; and, though he adds the words, “for which I have your bond”, that does not necessarily imply a separate debt. And that it shall be held for payment may very well be understood, that he shall allow it in payment pro tanto; and it is impossible for my Lord to prove a negative, that there were no other grounds of debt betwixt them save only this 2000 merks bond.
The Lords thought the presumption lay against the Earl; but, for clearing the matter, they ordained him, ex officio, to give his oath of calumny if he had reason to deny but he was owing 1800 merks to Mr Hugh at the time of the bill, over and above this 2000 merks bond. And, as to the paying before the term, the Lords observed, there was nothing in that argument; because, though the bill was drawn before the term of payment of that bond, yet it was not made payable till after. Some urged, his oath of calumny would be all one with an oath of verity here, being in facto proprio; but the case not being recent, but sixteen years ago, the Lords thought this expiscation might be tried before answer.
