Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Archibald Hyslop, Bookbinder, v. Montgomery of Mackbiehill
Date: 14 November 1671
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This is a charge upon a bond of 200 merks; which was suspended upon this reason, That though the bond bore borrowed money, yet he offered him to prove by the charger's oath, that the true cause of granting this bond was not money received, but allenarly for prentice-fee, to be paid by the defender for his son, whom he had bound to the charger. Which being granted, then the charge behoved to be suspended simpliciter, and the bond declared void and null; because he offered him to prove that the boy lived not half a year after his entry, and so there can be no prentice-fee due, and the bond falls in non causam. It is causa data causa non secuta; it now remains with the charger, sine omni causa.
Answered,—That whatever would be, where the prentice-fee is due by an indenture, which has mutual obligements on both master and prentice; on the master to teach his calling, on the prentice to serve dutifully; yet it is far otherwise where there is a bond granted for borrowed money: in which case he obliges himself in omnem casum for the money, and undergoes the hazard, whatever it may be; unless he be able to make it appear, that per eum et ejus culpa stetit that the boy stayed not out his whole time, or that he ran away because of hard and unaccustomed usage, or that he died.
Replied,—He acknowledged no difference betwixt an indenture and a simple bond save this, That an indenture was probatio probata to itself, and he needed 110 more to instruct the cause of the debt to be for prentice-fee but the indenture itself; whereas an absolute bond would militate against me without any remedy, if the party to whom I granted the bond be dead. But he being in life, I will cause his oath serve instead of a back-bond, and I will make him confess that the true cause of it is for prentice-fee; which being once done, then there remained no imaginary difference betwixt it and an indenture. But what defence would elide him charging on the indenture must undoubtedly meet a charge on this bond; and, therefore, if no prentice-fee due upon indenture could be craved when the boy died so shortly after, neither can it be sought upon a bond.
Duplied,—They offered them to prove that it was the custom of the burgh of Edinburgh, though prentices died within the years, yet the haill prentice-fee was due; and where the master died, then ere his relict or executors can have right to the prentice-fee, they must bind the boy to a master of the same trade for the years yet remaining.
They were to have the Lords' answer on it.
Then Sir J. Harper added another reason, That esto the Lords find prentice-fee due, though the prentice die presently after his entry, (which they will never do,) yet in this case it will never be due; because he offers him to prove the boy was starved with hunger and cold, in default of the charger.
Answered,—He offers him to prove it was in his father's default, who hindered him to come home to his house to diet and bed. Vide supra, numbers 133 and 134, [February 1671.]
