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Scottish Court of Session Decisions >>
M'Gowan and Boyd v Montgomery. [1700] Mor 11407 (28 June 1700)
URL: http://www.bailii.org/scot/cases/ScotCS/1700/Mor2711407-073.html Cite as:
[1700] Mor 11407
Where a bond of provision had been granted to a daughter by a father, and a bond of corroboration by his son; found, that where the second was not retired as well as the first, there was no presumption of payment.
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Rankeilor reported Provost M'Gowan and Boyd of Pincross against Montgomery of Skelmuirly. Sir Robert Montgomery of Skelmuirly grants a bond of 7000 merks as a provision to Antonia his daughter. Sir James, his son, gives a corroboration of it and his other brothers and sisters portions. Antonia marrying Pincross, he and Thomas M'Gowan, his creditor, pursue this Skelmuirly for payment, who alleges absolvitor, because the principal bond corroborated was retired, and in Skelmuirly's hand, and so presumed paid, being chirographum apud debitorem repertum; so that the bond of corroboration per se can be no probation of the debt, unless the first and principal bond were produced, seeing non creditur referenti nisi constet de relato. Answered, That the bond of corroboration alone is a sufficient instruction of the debt, seeing by the very style it is accumulando jura juribus, and but hurt or derogation thereto in any sort; and the having the principal bond can infer no rational presumption of its being paid, unless they had either taken a discharge, or retired it; likewise the bond of corroboration, seeing no man of sense would pay without one of these two: And it does not alter the case that the second bond contained the rest of the childrens' bonds as well as her's, and was registrated for their security, and so could not be retired and given up, for then no man could have relied upon the getting, up of the principal bond without a discharge of both, And this question being stated by the Doctors, is inserted by Vinnius, lib. 1. cap 70. quæst, select, et illust. and in his tractate de pactis, cap. 12. where there are plura chirographa unius debiti, an redditione unius censeatur tota obligatio remhsa? and he determines in the negative, and answers all the arguments adduced by Bartolus and Bachovius in the contrary. The Lords found, this being but a presumptive payment, it could not take place here, where the bond of corroboration was not likewise retired; and that in such cases, either retiring of both, or at least a discharge was necessary, seeing actus non debent operari ultra agentium intentionem; but if the creditor's actual re-delivery and back-giving of the original bond could be proved, it would make the debtor's defence of payment, or at least the pactum de non petendo, and renouncing the debt, more clear; for the producing the first bond, now retired and in the debtor's custody, is not so strong a presumption, seeing he might have, viis et modis, come by it without the creditor's knowledge or consent, as has sundry times fallen out.
Fol. Dic. v. 2. p. 138. Fountainhall, v. 2. p. 99.
