Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Park
v.
Somervell

Date: 12 November 1668

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Patrick Park having subscribed a bond for £100 sterling, blank in the creditor's name; which thereafter was filled up by inserting Nicoll Somervell's name; who did charge for payment:

There was suspension raised and reduction intented upon this reason, That the bond was granted to one John Somervell blank, as said is, for money lost at cards and dice; which, by the civil law, and Act of Parliament 1621, K. Ja. VI. was null: And the cause foresaid, being vitium inhærens et reale, albeit the charger, whose name was filled up, was in the case of an assignee, yet the reason was relevant against [him] as well as his cedent, to whom the bond was granted. This reason was not sustained to make the bond null, so as to liberate the debtor; because the Lords found, that, by the Act of Parliament foresaid, the debtor, for loss at gaming, is declared to be liable in payment: And therefore ordained that the whole money should be consigned; and that the charger should give his oath for what onerous cause his name was filled up, to the effect it might be known if he had right to the 100 merks of the said sum, declared to be only due to the gainer at such games, by the Act of Parliament,—Reserving to determine if he should have right to any more; which is declared to belong to the poor till after his oath should be taken.

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