Payment and Consignation how relevant to be proved.
Bisset v. Bisset
Date: 25 November 1624 Case No. No 139.
Found in conformity with, No 134. p. 12356.
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John Bisset, executor to George Bisset, pursues Mr Robert Bisset; son-natural to the said George, for delivery to him of a discharge of eight chalders of victual yearly, which the said umquhile George, in the said Mr Robert's contract of marriage, was obliged to pay yearly to him during the said George's lifetime, and which victual the said pursuer affirmed in his summons was paid by the defunct to the said defender all these years, for the which the pursuer, as executor to the defunct, craved the said discharge. It being alleged by the defender, That the payment of the victual yearly, as was libelled, ought to be proved by writ or oath of party, and was not probable by witnesses, in respect it was a matter of great importance, and tended to evacuate and destroy the condition of payment obliged in a contract of marriage, which cannot be taken away but after such manner as it is obliged. The Lords repelled the allegeance, and found that it might be proved by witnesses, seeing it was the delivery of victual, and it was not necessary to prove the delivery thereof by writ or oath of party.
The same executor pursuing in another summons, the same defender, for intromitting with 2000 merks of money of the defunct's after the defunct's decease, the Lords found that he ought to prove that intromission either by writ or oath of the defender, and would not admit the same to be proved by witnesses.
Act. Burnet.Alt. M'Gill.Clerk, Scot.
1626. March.—The like de novo was found betwixt Ker and Robison, in a matter of L. 200, whereto Scot was clerk, viz. that it should not be proved by witnesses. Likeas, in an action pursued by Claud Hamilton, as executor to a defunct against Hamilton for his intromission with money lying beside the defunct, and with his corns and bestial, the Lords found that the intromission might be proved by witnesses, but that the quantity, so far as concerned the money, should only be proved by his oath.
