Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

David Seton
v.
The Laird of Banf

Date: 19 July 1636

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The Laird of Tolquhon, younger, as principal, and the Sheriff of Cromarty, and Laird of Banf, as cautioners for him, gave bond to Alexander Forbes for 3000 merks. Banf being charged for payment of this sum; for his relief, the Laird of Frendraught, as principal, and the same Laird of Banf, as cautioner, gave bond to the said Alexander Forbes, for that same sum; and Banf gave Frendraught a back-bond, declaring, that, although he was principal in this last bond, yet the money was truly addebted by Banf, and that therefore he obliged him to relieve Frendraught thereof: Frendraught makes his man, David Seton, assignee to his back-bond, who raised a summons against Banf, for proving of the tenor thereof, in respect he libelled it was burned in the house of Frendraught amongst many other writs that were lost there. Alleged, He could not prove the tenor of the back-bond libelled, unless he would produce some adminicles in writ; otherwise it should prove a matter of very dangerous consequence to make bonds of great sums this way by the depositions of two witnesses. Replied, Adminicles are indeed required in proving of any writs concerning heritable rights, such as contract, charter, sasine, confirmation, &c. which have a coherence and dependence one upon another; so that one of them being lost, it is reasonable that some of them that are extant, either preceding or flowing from it that is lost, be libelled and produced, for an adminicle to sustain the proving of the tenor of the other. But, in simple bonds, which cannot be sustained by any adminicle of another writ, this cannot be required: Yet, albeit the pursuer can have no adminicle in writ to sustain his back-bond, he will offer to prove, by the defender's oath, (which is in a manner equivalent to writ, 1mo. That the defender was bound as cautioner for Tolquhon, younger, to Alexander Forbes in this sum; 2do. That Frendraught became obliged, for the defender's relief, in the second bond to the said Alexander; 3tio. That the defender gave a back-bond to Frendraught, acknowledging that the debt was his own, and not Frendraught's; 4to. That Frendraught, having got an assignation of the first bond from Alexander Forbes, transferred the same in the person of John Sutor, servant to Banf, at the defender's own desire; which John Sutor had recovered payment of 2000 merks of the said sum, from Cromarty, for his part of the said principal sum, with the bygone annual-rents, and that to the behoof of the defender; 5to. That the back-bond was never delivered by Frendraught to the defender, after the subscribing thereof. In respect of which circumstances concurring with the notoriety of the casus amissionis libelled, the summons ought to be sustained. The Lords found the circumstances contained in the reply sufficient; adminicles being proven, by the defender's oath, to sustain the summons for proving the tenor of the back-bond libelled.

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