Scottish Court of Session Decisions

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

Marion Brown, relict of Jo Wauchop, and Wauchops their Children,
v.
Jo Wauchop of Gleghorne.

Date: 17 February 1665

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Marion Brown, relict of Jo. Wauchop, and the children of the marriage betwixt them, charge Jo. Wauchop of Gleghorne, for payment making, (conform to his bond granted in 1664 to the said John,) of 400 merks. This charge he suspends on thir reasons; 1mo, That formerly having made an offer of the said 400 merks, he found the chargers incapable to grant him sufficient and valid discharges therefore, in respect the chargers had denuded themselves of the said bond and sums of money therein contained, by assignation made in favour of Mr. Robert Clerk, writer in Edinburgh. Notwithstanding whereof, he only minding the chargers' good, granted them new bond for the 400 merks, and took her bond for delivering and obtaining to him of the former bond, given up to Mr. Clerk, with the assignation thereof, or at least his sufficient discharge thereof; nothing of which the chargers have yet done. Therefore, [1est he should be liable in double payment,) he craves the letters may be suspended ay and while the other bond be fulfilled. Item, because the said Mr. Robert Clerk is dead, he craves an extract of his testament; item, that the said sum may be confirmed and discharged by his lawful executors. 2do, No execution can pass on the said bond, charged on at the children's instance; because, by the tenor of the bond, the same is only payable to them at their mother's decease; and though their mother were deceased, they ought to be authorized, being all minors, with tutors and curators, before he could tuto pay them any sums of money. At the same time, Cleghorne charges the said Marion Brown, upon her bond, to deliver to him the said 400 merks bond, with the assignation thereto made in favour of Mr. Robert Clerk, &c.; item, to pay L.100 of penalty, contained in the bond, for her failyeing.

This charge she suspends on this reason, That the bond charged on is intrinsically and of the law null, being ob causam datam, causa non secuta; for when she granted the said bond, it was in expectation either of present payment to have been made to her of the said 400 merks, or of most sufficient security for payment thereof; but, to the contrary, he sent her a most insufficient bond, as appears by his suspending of it since: and, therefore, till such time that he grant her a better security, she cannot be holden to obtemper his charge. At the calling of thir two suspensions, there is produced by Marion Brown the first bond, with the assignation thereto, in favour of Mr. Robert Clerk, and Mr. Robert his discharge on the back thereof.

Upon the which production the Lords found the letters at her instance against Cleghorne orderly proceeded, ay and while he paid the said sum. Suspended them quoad L.40 of penalty. Suspended the letters raised by him against her; only ordained the clerk of the process to deliver up to him the foresaid first bond, with assignation and discharge, upon his receipt thereof, which should be to the clerk a sufficient warrant.

For Cleghorne, Geo. Stewart. Alt. Mr. Thomas Lermonth. Signet MS. No. 80, folio 63.