Scottish Court of Session Decisions

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

Mr Alexander Seatton of Pitmedden
v.
John Forbes of Craigivar

Date: 3 July 1673

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Pitmedden, as executor to his goodsire, and thereby having right to a bond granted by Craigivar's father, whereby he was obliged to cause one Burnet transfer a bond to him of five hundred merks, who was made assignee to his behoof; which bond was granted by Seatton of Disblair to one William Donaldson; did thereupon pursue Craigivar, as representing his father, to make payment of five hundred merks, seeing his father had not performed the obligement, and caused his servant, Burnet, grant the translation, at or before the term to which he was obliged to procure and deliver the same.

It was alleged for the defender, That he could not be decerned to refund the five hundred merks upon that ground, because the pursuer's goodsire, nor father, did never require the same, which, in law, they were bound to do; seeing, in the bond charged upon, he did grant the receipt of the bond and assignation, without which the translation could not be drawn.

It was replied, That the bond being pure and absolute, without any condition to procure a translation betwixt and a certain day, the same being elapsed, dies interpellit hominem; and there being no condition that Pitmedden should require or exhibit the writs delivered for drawing of the translation, he became debtor in the bond, for not fulfilling. And the reason why he had not been pursued for so long a time, since the year 1633, was, that the pursuer's goodsire did soon die thereafter, and his father was killed in the king's service at the Bridge of Dee, in the year 1639, and himself minor a great part of that time.

The Lords decerned, notwithstanding of the defence, and found, that Craigivar, being bound to perform at a certain day, without any condition, in case he should be required, that there was no necessity, upon Pitmedden's part, to do the same; and that Craigivar, if he had need of the bond and assignation for drawing of the translation, should have required him to exhibit the same; which not being done, the bond was obligatory against him and his heirs.

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