Scottish Court of Session Decisions

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

Robert Malloch
v.
Graham of Gorthie and his Tutors

Date: 19 February 1673

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In an exhibition at Malloch's instance, against John Mitchell, clerk of the stewartry of Stratherne, as depositary of a bond of 4200 merks granted to the deceased Mungo Graham of Gorthie, upon express condition not to be delivered up until the pursuer should receive a disposition of the lands of Cairns, whereof he was heir of tailyie, to Mr Alexander Malloch, from Katherine Malloch, who was heir of line: As likewise, a bond of £1000 due to herself proprio nomine, with an assignation made to Gorthie for his relief and security, as being cautioner to the said Katherine for her said debt, and a sum of money given to her for her right and good-will: As likewise, in the said exhibition, Gorthie's apparent heir was called, and his tutors for their interests, bearing a declarator, that the foresaid bonds should be delivered back again; in so far as it was refered to Gorthie's tutors' oaths, that, viis et modis, they had gotten the said bond delivered by Mitchell to them since the intenting of this action; and, by Mitchell's oath, who was the depositary;—that it was consigned and deposited in his hands upon express condition not to be delivered up but upon the fulfilling of the foresaid conditions, viz. the delivery of the disposition of the estate, and the bonds granted to the heirs of line, with the assignation made to the deceased Graham of Gorthie; otherwise it ought to be declared that the said bond, of 4200 merks, should never be obligatory until the said conditions should be fulfilled:—

It was alleged for Gorthie, That the bond called for, being now in his own possession, could not be taken away by the oaths of his tutors; for, by our law, the depositation of a writ is not probable but scripto vel juramento partis; and it were of a most dangerous consequence that children, having rights to bonds granted to their father, should be taken away by their tutors' oaths: and John Mitchell's oath could not be taken to make up any alleged conditions of depositation, seeing the bond was put in his hand as a notary for taking a seasine, in name of the deceased Gorthie, of the said lands, conform to the precept of seasine contained in the said bond; which being a necessary and just cause, and after taking of the seasine, the bond being delivered back, his oath can never be taken to prejudge the defender, who is a minor, and knows nothing of these alleged conditions of depositation.

It was replied, That the exhibition and declarator was well founded, notwithstanding of the defence; seeing tutors, being intrusted and nominated by the father, their oaths are receivable for proving the conditions or depositations of writs, as the father himself, if he had been alive, his oath would have been taken thereupon: for the law presumes that tutors will never swear any thing to the prejudice of their pupils; and if they shall depone that they got the bond from Mitchell since the intenting of this cause, then, in law, his oath ought to prove the terms of the depositation; otherwise the bond must be looked upon as an undelivered evident: neither can his having of the bond be attributed only to that reason, that he might take seasine thereupon, seeing he being the writer of the bond and assignation, and of the disposition, which was the cause of the boud; he was likewise clerk of the stewartry, and so might take seasine whenever he pleased, without an express order. Likeas, in fortification of the summons and reply, the conditions of the depositation were offered to be proven by the communer's and witnesses' oaths, inserted in the bonds and writs; and it was craved that the Lords would examine them ex nobili officio.

The Lords, having considered this case as being of consequence and difficulty, did refuse to examine witnesses ex officio to be a ground for taking away this bond from a pupil who was innocent and knew nothing of these transactions: and, as to the finding it relevant to be proven by the tutors' oaths,—the minor and tutors themselves declared, that they were content that it should be found relevant to be proven, by the tutors' oaths, that they had gotten the bond since the intenting of this cause, being clear to depone thereupon: otherwise the point of law had been very difficult to have been determined; and it seems their oaths could not take away their pupil's bond: so that the only remedy in law was to make Mitchell, the depositary, liable for fraud and circumvention, in deceiving his trust in giving up the bond; and the tutors, if they were participes fraudis, by taking indirect ways to get the same.

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