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Scottish Court of Session Decisions >>
Sir William Denholm of Westshiels v George Lockhart of Carnwath. [1694] 4 Brn 168 (4 June 1694)
URL: http://www.bailii.org/scot/cases/ScotCS/1694/Brn040168-0385.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Sir William Denholm of Westshiels v. George Lockhart of Carnwath
Date: 4 June 1694
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The Lords, having advised the bill and answers of Sir William Denholm of Westshiels, and George Lockhart of Carnwath, they adhered to their former interlocutor, finding the assignation given by Westshiels, to the deceased President Lockhart of Fordel's bond, behoved to be ascribed in payment of the 2000 merks bond which he and Allanton owed Sir George, unless they would condescend on another debt for which this assignation was given; but found the allegeance relevant, by Westshiel's oath, that it was for another debt.
A debate arose, If his brother Walter's oath ought also to be taken; seeing he confessed, in the answers, that he gave Walter the assignation blank in the name of the assignee: And, though some alleged it might be a dangerous preparative to take away rights by an interposed party's oath, who was no more but as a servant to carry and deliver it; yet the Lords ordained him also to be examined anent the cause of it, Whether there was any other bond or discharge in the case; Westshiels always, in the first place, deponing that he delivered the assignation to Walter, his brother, blank in the name.
The next question was, If Carnwath, having innovated the former bond assigned to him, and taken a new one from Fordel, can be exonered by offering Westshiels a right to that bond. The Lords generally thought he could not; but, in regard a prior interlocutor gave Carnwath the election, either of paying or assigning to this new bond; therefore, before they would alter, allowed him to be farther heard thereon.
