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Scottish Court of Session Decisions >>
William Clerk and Edward Wright v TheEarl of Annandale. [1683] 3 Brn 449 (19 January 1683)
URL: http://www.bailii.org/scot/cases/ScotCS/1683/Brn030449-0668.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 19 January 1683
William Clerk and Edward Wright v. TheEarl of Annandale
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Mr William Clerk, and Mr Edward Wright, advocates, as having right to Ruthven of Gairden's wadset on the Earl of Home's estate, pursue this Earl of Annandale, as representing his good-sire, cautioner in that wadset.
The Lords, upon Nairn's report, find Tillibairden and John Elies's comprisings, now purchased in by Annandale, null, as led for some annualrents, now instructed to have been paid before the lea:ling it. But, in regard of the pursuer's consent, they sustained and allowed the same quoad principal, annualrents, and true debursed expenses.
A bill having been given in by Annandale against this; the Lords having considered it with Mr Clerk's answers and condescendance, they, on the 27th of January 1683, adhered to their former interlocutor, except as to the first article; they sustain the Earl of Tillibairden's apprising, not only as to the principal sums in the bonds, and their annualrents, but also as to the necessary debursed expenses; but they refused to allow compensation against Eiies's comprising for the £480 received by Alexander Lessley, his cedent, to be given to auditor Thomson or Troutback, and the other receipts granted by Alexander Lesley; except Clerk, the pursuer, will offer to instruct that these tickets and receipts were extant and seen, (they wanting writer's name and witnesses, and appearing to be holograph,) before the intimation of Alexander Lesley's assignation, made to John Elies the appriser. Which the pursuer offering to prove, they allow the same term to the defender to prove that the £480 were accordingly delivered to Thomson or Troutback, and Jerdane's bond retired in the terms of the receipt; as likewise, to prove that the 500 merks to Pennicook, and Jerdane's bond retired from him in the terms of the ticket: and remit to my Lord Pitmedden, (in respect of Nairn, the former auditor's infirmity,) to see the calcul of the balance adjusted; as also, to hear the parties upon any thing farther they have to say, not already debated and determined by former minutes.
