Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.

Matthew Laury
v.
James Brown

1676, and 1677.

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1676, February.—Mattheaw Laury, Fletcher in Dalkieth, having charged James Brown, Cordiner there, upon a bond of 300 merks, Brown suspends, and raises reduction upon this ground, that he offered to prove by the charger's oath, that the true cause of the granting of the bond was not borrowed money as it bore; which being once confessed and acknowledged by him, then offered to prove per testes instrumentarios inserted, that the true cause of the granting the said bond was, that the charger having married the suspender's sister, by contract of marriage, the suspender and his mother became obliged, nomine dotis, to pay to the charger 500 merks in two moieties, 200 merks at one term, and the remanent 300 at another. And though the charger's mother having given bond for the last 300 merks, did pay it, but contented herself with a discharge of it, (as she had also taken of the 200 merks preceding,) without getting up her bond; when she is dead, Laury, the charger, most fraudulently affirms to this suspender, who knew no better, that the 300 merks in the bond (which he shewed him) were still owing to him; whereon Brown the suspender, being a simple and ignorant man, retires his mother's bond, and grants this new one charged on, and afterwards finds the discharges of the tocher. And so it being proven by the writer and witnesses inserted, that the cause of the granting this bond, was for a remain of that tocher; then offers to prove, scripto vel juramento, that the whole 500 merks of tocher was paid. And so the bond being granted by error and simplicity on the one hand, and evident circumvention and dole upon the other; and being granted for the same cause for which the mother's bond was given, and that being extinguished by payment and satisfaction, and reduced ad non causam; this bond must fall in consequentiam, as being in the charger's hands and custody indebite et sine omni causa, and therefore ought to be delivered up to the suspender, to be cancelled by him.

To this it was answered, that the reason was very relevant if true, but the modus probandi was nowise allowable, since his bond could be nowise taken away but by his own oath, or a contrary writ.

This being taken to interlocutor, the Lords allowed the reason to be proven in the foresaid manner condescended upon, and found it was his own oath took away the bond, (and not witnesses,) if he once acknowledged the cause of the granting thereof not to have been for borrowed money as it purported; for then ex officio, they ordained the writer and witnesses mentioned in the bond, to be examined before answer, anent what they heard or knew, the time of the subscribing, to have been the cause why Brown the suspender gave this 300 merks bond to Laurie the charger, and if it was for a remain of tocher. See for this case, supra, November, 1673, [Syme against Inglis,] No. 429, and the two citations from Dury there.

On the 6th of June, 1677, the Lords having advised Laurie's oath with the testimonies of the witnesses in the bond, they found Brown's reason of reduction not proven thereby, and therefore assoilyied, and found the letters on the bond orderly proceeded at Laurie's instance.

Advocates' MS. No. 470, folio 243.