Scottish Court of Session Decisions

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

Mr John Semple
v.
Jean Semple and her Husband

Date: 12 November 1674

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In an action pursued at the said Mr John's instance, as assignee to a bond granted to John Semple of Balgoune by Semple of Noblestoun, as cautioner for Semple of Stanifleet, who was principal in the bond against the relict and executor of the said cautioner:—it was alleged, That the pursuer could have no right as assignee; because, long before any intimation of his right, his cedent, by a missive-letter written to the principal in the bond, had written, that the particulars betwixt him and Stanifleet were equal; and that he was willing to discharge him, he getting a discharge from him.

It was replied, That the said missive-letter, being written by John Semple, who was a writer to the signet, could only be applied to accounts for writing, he being Stanifleet's ordinary; but could not be interpreted to take away a bond of borrowed money; especially the said offer never being accepted of, nor mutual discharges thereupon granted.

The Lords did sustain the defence, founded upon the missive-letter, to take away the bond, notwithstanding of the reply; upon these special reasons, That it was an old bond for an inconsiderable sum, whereupon Balgounie had never distressed the principal nor cautioner; nor had left it amongst the inventory of his debtś: but they did declare, that the defender should procure a discharge to Balgounie's executors from Stanifleet, or warrant them against Stanifleet's representatives.

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