Scottish Court of Session Decisions

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

George Cheyn
v.
The Lord Rose-hill

Date: 17 January 1679

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George Cheyn having charged the Lord Rose-hill for payment of 5000 merks contained in a bond granted by the Earl of Northesk, his father, and him,—he suspends on this reason, That the bond was never a delivered evident by the Earl of Northesk, the principal debtor, but it was subscribed by him and the suspender for borrowing of the sum; but was detained in Northesk's own hands, or his lady's, or others in his family, blank in the creditor's name, till the Earl fell in his late indisposition of losing his speech, and so becoming unable to manage his affairs; after which no person was in capacity to deliver the same. And as to George Cheyn, there was never money borrowed from him by the Earl, or his son; and if he accepted of a blank-bond after the Earl's indisposition, which was known to all, he was in pessima fide; and therefore, though writ ordinarily can be taken away by writ, or oath of party, yet it hath been often sustained,—when bonds were pursued for, against one representing a defunct, or made use of to exhaust his moveables,—that the allegeance that the bond was undelivered, or retired, lying in his charter-chest at his death, was probable by witnesses: and the case here is as favourable; for, after the Earl's indisposition, no bond subscribed by him could be delivered, more than if he had been dead.

The charger answered, That such pretences might be alleged against every bond; and that Rose-hill, being in health, might have delivered the bond.

It was replied, That there are here special circumstances, by the Earl's indisposition, which put this bond in the case as if it had been granted by a defunct: nor could Rose-hill have delivered the bond, he not being the principal debtor. And it is known there are many such bonds subscribed by Northesk, which, if they were sustained, would ruin his estate. It is also known by some of the Lords who treated betwixt the Lord Rose-hill, his mother and brothers, that this bond was not in Cheyn's hands, but in the heirs, and was to be given up to Rose-hill. Although it was pretended that my lady had received the bond, and delivered the money out of her own closet, yet there was no pretence that the money was Cheyn's, but the law presumes it to be my Lord's money; and though the bond bears date five years ago, yet Cheyn had neither demanded annualrent, nor done diligence thereupon.

In consideration of these circumstances, the Lords, ex officio, ordained witnesses to be examined upon the reasons foresaid; and, if need be, that George Cheyn be examined ex officio, how he got this bond, when, and for what causes.

Vol. II, Page 675.