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Elizabeth Gibson pursues Fife for 100 merks lent by her to him; and referred the same to his oath. He deponed that he received the sum, and gave a bond for it blank in the creditor's name, and therefore was not obliged to pay it till his bond was retired. The pursuer having also deponed that the bond was lost, and both parties having agreed upon the date, writer and witnesses of the bond,
The Lords decerned the defender to make payment of the same, the pursuer always, before extracting, finding caution to relieve or repay, if he should be distrest by any bond of the same sum, writer, date and witnesses.
Fol. Dic. v. 2. p. 49. Stair, v. 2. p. 434.*** Dirleton reports this case:
1676. June 21.—A woman having lent 100 merks upon a bond, and the same being lost, the debt or was pursued for payment of the said sum, and did confess that he had truly borrowed the money and granted the bond blank, and he was willing to pay the same, being secured against any pursuit at the instance of any person who might have found the said bond, and filled up his own name therein.
The Lords thought the case to be of great difficulty and import as to the preparative, that practice of granting blank bonds having become too frequent; and resolved, in this case, to take all possible trial by the debtor's oath, and likewise, of the date and writers name, and the witnesses in the said bond; and thereafter to ordain the debtor to pay upon surety, that the pursuer should relieve him of any bond that should be found of that date and sum, and written and subscribed by the writer and witnesses that should be found to have been in the said bond.
