Scottish Court of Session Decisions

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

John Callender
v.
David Colyier

Date: 9 February 1677

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In a suspension, raised at John Callender's instance, who was charged at the instance of Colyier; for payment of a hundred merks, contained in a bond subscribed by him, as cautioner for John Selkirk; upon this reason,—That the bond was innovated, in so far as Selkirk, the principal, had granted a new bond to the charger for two hundred and fifty merks; which must be presumed to have been granted, not only for the first bond, but for the sum of a hundred pounds added thereto; otherwise it had mentioned that it was in corroboration as to the first bond. Likeas, upon the back of the second bond, there is a declaration, that it is in place of the first bond, and for a new security; and there being no reservation of the first bond, the law presumes that it must be in place thereof; because a greater sum et inter easdem personas.

It was answered for the charger, That the bond charged upon was opponed; which bearing no mention of the first bond, or that the same was retired or discharged, the law presumes that the posterior is no innovation, and cannot extinguish the old; which, by our practick, is never sustained, but where it is in terminis directis, as was found by two several practicks in Durie,—one in anno 1628, betwixt Stewart and Fleming; and another in anno 1624, in the case of Wishart's heirs.

The Lords did find the letters orderly proceeded, and refused to sustain the innovation, unless it were proven scripto vel juramento.

Page 634.