Scottish Court of Session Decisions

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

The Earl of Marshall and Lord Arbuthnot
v.
Barclay of Johnstoun

Date: 17 December 1672

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Arbuthnot, as assignee, by the Earl of Marshall, in and to a bond of 6500 merks, granted to the deceased Earl of Marshall by Barclay, bearing, that it was for a part of the price of the lands of Cletton, disponed in feu,—having charged Barclay for payment, he did suspend upon this reason, That, by a posterior contract of wadset of these same lands, wherein the first right of feu was resigned, —it was Declared, That the whole sums of money due as the price of the said lands were satisfied and paid; and, therefore, the bond being granted for that same cause, must of necessity be interpreted to be paid, and should have been delivered back to the suspender: which likewise may be evinced, in so far as the Earl did pay the 500 merks more than the 6000 contained in the bond.

It was answered, That it being ordinary, when lands were disponed, to grant the receipt of the price, and bonds are granted for the same, any declaration by way of narrative, in a subsequent contract, will not import payment of the bond, unless it had been retired; it being usual, upon receipt of bonds as the price of lands, to grant discharge of the price, and receipt of the money in dispositions.

The Lords did find, That the bond not being retired, the narrative of the wadset, bearing payment of the sums, could not prove payment of the bond, unless the suspender would prove otherwise, that really he paid the money, or did otherwise satisfy the bond; especially considering that the suspender was known to be a very exact man, and would not have omitted to have retired the bond.

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