Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Anent a Bond of Presentation
Date: 2 July 1670
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One being charged to pay a penalty contained in his bond, by which he was obliged either to sist a certain person taken with caption, at such a precise day, or else pay such a sum; because he had failyied in sisting the debtor:—
alleged,—1mo, Absolvitor from the penalty, because there is no day expressed in the bond at which he was liable to sist him; and therefore he was not obliged to sist him till they required it, which they never yet did.
Vide infra, No. 409, [3d July, 1673, Seaton against Forbes;] and 699, [1st January, 1678, Cleilland against Lockhart.]
Replied,—They offered to prove by the defender's oath he engaged to present him betwixt and such a day, and that it was so agreed upon, though it be omitted in the bond. This was found relevant.
That 2do, Alleged,—He could not be bound to sist him at that day, because he offers him to prove he was then lying bedfast of a very heavy sickness, which behoved to purge his failyie. Sir George Lockhart remembered the same was found relevant to himself, in an action some few days before, viz. on the 30th of June, 1670, (it is No. 47, supra,) seeing the same was casus fortuitus: yet he contended that the defender had yet incurred the penalty, in so far as he was obliged (not indeed to sist him when he was lying sick and unable,) but primo quoque tempore, so soon as he was able to come abroad and travel; which they did not, and therefore must be liable. Replied,—That they needed not offer him till they were required. Which was Repelled; since here dies interpellat pro homine, and therefore they found it was the defender's duty to have offered him as soon as he was in a condition to come abroad.
Then they Alleged,—They offered them to prove he has ever since lain sick and unable to come abroad. Which was Found Relevant.
