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Scottish Court of Session Decisions >>
Sir Gilbert Stuart of Polkaik v Thomas Robertson, alias Maccondochie. [1665] 2 Brn 412 (18 February 1665)
URL: http://www.bailii.org/scot/cases/ScotCS/1665/Brn020412-0673.html Cite as:
[1665] 2 Brn 412
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Sir Gilbert Stuart of Polkaik v. Thomas Robertson, alias Maccondochie
Date: 18 February 1665
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Thomas Robertson, alias Maccondochie, in Dunkeld, is addebted to Thomas Young there in 250 merks. This bond Thomas assigns Sir Gilbert Stuart of Polkaik to; who charges thereon. Robertson suspends, 1mo, Because he never had any dealing with Thomas Young, the cedent, though the bond bear borrowed money; offers to prove the bond to be false and feigned, as he has really intented summons of exhibition of the bond to that effect. 2do, Esto, It were a true debt, he craves compensation of greater sums addebted by the cedent to him. At the calling of this suspension, there is proponed this eiked reason, that Polkaik's assignation was to his cedent's use and behoof; which being proven, they offered them to prove by the cedent's oath, that the bond charged on was consigned blank in William Rosse his hands, to have been filled up in the sum at the sight and determination of two friends; without which the cedent filled up most fraudulently the sum charged for.
The first part of this eiked reason, videlicet, That the assignation was to the cedent's behoof, the Lords found it relevant to be proven by the assignee his oath: whereupon a commission is taken to the bailies of Perth for taking his oath; who deponing that it was to his own behoof, the Lords found the letters orderly proceeded as to the sum charged for.
