Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Cleland of Hearshaw v. Lockhart of Birkhill
1678 and 1679.
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1678. January 1.—Cleilland of Hearshaw, as assignee by Hamilton of Green, charges Lockhart of Birkhill, &c. to pay the sum of £440 Scots, for not presenting of Claud Hamilton of Letham, conform to their bond of cautionry.
They suspend on this reason, That, at the day mentioned in the bond, the debtor, who was to have been presented, was sick; and that, primo quoque tempore, so soon as he recovered, about two months thereafter, they offered him; which ought to exoner them.
Answered,—By their bond, they were obliged to have sisted him in the prison of Hamilton; which they did not: and these obligations are stricti juris, and to be performed in forma specifica.
This being reported by Harcourse, the Lords, before answer, ordained the witnesses in the instrument of the offer of him after his recovery, to be examined. Vide supra, 2d July 1670, num. 58.
The suspenders aimed likewise at this reason, That their obligation to sist the principal debtor at such a precise day, was conditional: as if they had promised under the condition, si navis ex Asia venerit; and he being impeded vi majore et casu fortuito, by sickness, they were not liable, thereafter, to present him when he reconvalesced, but were simpliciter free. This was not debated,. Vide legem 26 C. de Fidejussoribus.
Modica mora, in producing one whom we are bound to enter, makes him not incur the penalty, says Paulus J. Ctus in Lege 91, § 3, D. de Verborum Obligationibus,—Hattomani liber juris consultus dictus, pagina 66. Vide supra, 1st November 1677, Jameson. Vide 18th January 1679, thir same parties. See Lanfrancus Balbus, decisione 345.
Advocates' MS. No. 699, folio 314.
1679.January 18.—In the action between Cleland of Hearshaw and Lock-hart of Birkhill, (Vide 1st January 1678;) the Lords having ordained the instrument to be proven in thir terms,—That, when they sisted and offered him, Hamilton of Green either discharged them to take him to prison directly, or in words of equipollent sense; the testes instrumentarii being examined, viz. Monkland and Raploch, they deponed that Green only refused to accept of him there, at his own house.
The Lords having advised the testimonies, they found the depositions did not prove; and therefore found the letters orderly proceeded against the cautioners.
