A person became bound to convey all debts, and the grounds thereof, due to him by a third party, and one of the grounds of debt being lost, he was allowed to prove pro ut de jure that it was known at the time of the agreement to be lost.
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William Crawfurd, in consideration of 7000 merks to be paid by Thomas Macfie, became bound to convey to him the hail principal sums, annualrents, and penalties due to Crawfurd by Wallace and Morton, with his hail grounds of debt and diligence, personal and real, affecting their heritable and moveable subjects.
Among the debts thus agreed to be conveyed was a bond of 700 merks due by Wallace and Morton, to which Crawfurd had right, on which adjudication had followed. Crawfurd produced the adjudication, but he did not produce the bond.
Macfie claimed deduction, to the amount of this bond, from the 7000 merks he had obliged himself to pay to Crawfurd.
Crawfurd charged for his whole sum, and offered to prove prout de jure, That at the time of the transaction Macfie was in the knowledge the bond in question was lost, and therefore could not expect to have it delivered to him.
Macfie suspended, and answered, The allegeance was only probable scripto aut juramento; for the import of it was, to take away the effect of a writing, to wit, Crawfurd's obligation to convey the whole debts with the diligences on them; and that could not be done by a proof prout de jure.
“The Lords allowed a proof of the allegeance prout de jure”.
Act. Arch. Hamilton & Millar.Alt. J. Dalrymple.
Fol. Dic. v. 4. p. 163. Fac. Col. No 131. p. 195.
