Scottish Court of Session Decisions

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

Mark Cass of Cockpen
v.
Douglas and Others

Date: 1 February 1671

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In an action, pursued at Cockpen's instance, against some of the Laird of Bonjedburgh's tutors, upon a missive letter subscribed by them in name of the whole tutors, bearing,—that their pupil being debtor to Henry Douglas, who was debtor to the pursuer; that the pursuer should fit an account with the said Henry, and write to the defenders what sum was due to him, and appoint one to receive the same, or bond therefor; which they were willing to grant, or make payment in a very short time: whereupon he did subsume, that he having gotten a bond, from the said Henry Douglas, for 524 merks, the defenders ought to be decerned to make payment.

It was alleged for the defenders, That the missive letter was not now obligatory; because,—it being subscribed in anno 1658, when the defenders were tutors to Bonjedburgh, and bearing only an offer to become debtors within a short time, upon closing of accounts and reckoning with Henry Douglass; the pursuer never having declared his acceptation thereof until the defenders were all out of office, and did never intimate the same, but by intenting this action, by the space of 11 years after the date of the letter, before which time payment was made to Henry Douglas,—the missive letter could not be sustained as obligatory; it being of the nature of a bill of exchange, which should have been intimated, and returned within year and day.

It was replied, That the letter was opponed, bearing no special time. But that whensoever count and reckoning should be made with Henry Douglass, the defender should be liable; after which, they should have retained as much in their own hands, of their intromission with the pupil's means, as should have relieved them.

The Lords did sustain the defence; and found, That the letter was not obligatory after the expiring of the tutory; unless the pursuer will prove, by the tutor's oath, (who did subscribe,) or scripto, that they had still in their own hands as much of the pupil's means as would satisfy; and that the said Henry Douglass was never paid by them, nor since by their pupil, during minority, with their consent.

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