Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

The Eleemosyner of the Poor of Linlithgow
v.
Kennoway and Cockburn

Date: 19 November 1675

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The Eleemosyner of the Poor of Linlithgow having a bond granted to him, for the poors' behoof, by Whitehead of Park, and having used horning and caption thereupon,—Piltoun and Lenie interpose, and agree with the eleemosyner that he should give an assignation to them of the bond, horning, and caption; and that they should give him a new bond, wherein they should be obliged conjunctly and severally, and that the writ should be put in the hands of Kennoway till they were interchanged. Accordingly, the assignation was subscribed by the eleemosyner, and delivered to Kennoway with the old bond, horning, and caption. Piltoun subscribes the new bond, which was also in the hand of Kennoway. Lenie promised to subscribe, but did not. Whereupon Piltoun prohibited Kennoway to deliver up his bond till Lenie subscribed: and therefore Kennoway refused to deliver up the bond to the eleemosyner; who, having pursued Kennoway to deliver, and referring to his oath that he had the said new bond in favours of the eleemosyner subscribed by Piltoun, and delivered to Kennoway for the poors' use, to be given to their eleemosyner,—Kennoway did depone, and the substance of his deposition was according to the deduction foresaid. At the advising of the oath, Piltoun appears, and alleges, That it is clear, by the oath, that the agreement was, that Piltoun and Lenie should both be bound conjunctly and severally, and that he had expressly prohibited Kennoway to deliver up his bond till Lenie had subscribed; and, if the bond should be given up, it might be made use of against him for the whole sum, without having relief of Lenie. It was answered, No respect to Piltoun's prohibition, because it was after the agreement and his subscription: so that the writ, being subscribed and delivered to Kennoway without any such prohibition, to be given up to the poor; as to Piltoun, it was a delivered evident; and it was his own fault that he subscribed before he saw Lenie subscribe with him. The Lords, found, That the bond ought to be delivered up to the eleemosyner, and the assignation of the old bond to Piltoun; but declared, That Piltoun should be only liable for the one half of the sum in the new bond, as he hath only right to the one half of the old bond by the assignation to Lenie and him; and that he had no interest to stop the delivery of the bond upon Lenie's not subscribing, seeing there was no alteration as to him thereby.

Vol. II, Page 371.