Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

James Oswald
v.
Captain Hamilton

Date: 27 January 1688

Click here to view a pdf copy of this documet : PDF Copy

In a competition betwixt James Oswald, as executor-creditor to Ninian Henderson, and Captain Hamilton assignee, by Ninian's son, to a new blank bond taken by the cedent, after his father's death, from one Wauchop, in place of an old bond granted by Wauchop to the defunct; the cedent and Wauchop being both pursued, and the former having deponed that he gave up the old bond, and took the new in place thereof, for saving the charges of confirmation, they were decerned to deliver up the said bond, or pay the money. Alleged for Hamilton, That the debtor ought to be liable to him, as having the blank bond delivered to him; and if he renewed the bond unwarrantably, let him be liable to both, and seek his relief of young Henderson. Answered for Oswald, That his decreet against young Henderson and Wauchop, being prior to the intimation of the blank bond, is preferable thereto; seeing, in a competition with creditors, blank blonds require intimation. Alleged for Wauchop, That he not being obliged to know that the creditor was dead, as he might have retired his bond upon bona fide payment, so he might renew a blank bond; and bona fides non patitur ut idem bis exigatur. The Lords preferred James Oswald, and found the debtor but once liable.

Page 49, No. 217.