Scottish Court of Session Decisions

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

Auchinharvey
v.
Duke of Hamilton

Date: 13 June 1688

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In anno 1637, Duke James Hamilton granted a bond for L.204 sterling, payable to William Muirhead, for the use and behoof of Robertland; which bond the present Duke contended was void and null, upon these presumptions: 1. It bears Belhaven to be cautioner, who is not subscribing. 2. In anno 1642, £500 was borrowed from Robertland, and paid in the 1643, which was a better security; and the greater sum is presumed to contain the lesser. 3. In the year 1648, Robertland got a new security, with several cautioners, for £20,000, in the name of Auchinharvey, for his own behoof, and yet did not claim payment or security for the bond in question, for which he had no cautioner. 4. [Anno] 1658, the lands of Chelsey were sold by commission; and William Muirhead, though a commissioner, did not claim payment of this bond. 5. The estate of Hamilton, in anno 1658, was disposed of for payment of the debts of the family, by commission from the usurpers, and publication made at the market-cross of Edinburgh for that effect; and the creditors came to Hamilton, where the commissioners sat, and got lands and conveyances for their debts; and yet Robertland set up no claim for this bond, although he was in the country, and at the same time assigned the bond to Richard Cunninghame, who intimated the same to the Duke and Duchess, and could never hope to have any satisfaction thereafter, the lands being forfeited, and the Duchess not representing her predecessor. Answered, Robertland being a cavalier, did not trouble the family during the usurpation, when it was in distress; but, in anno 1662, process was commenced and insisted in some years. 2. In anno 1652, the bond is entered in the court of claims, as appears by the attest of William Welsh, secretary. 3. If presumptions may take away bonds, no man will be secure. The Lords sustained the foresaid presumption to take away the bond.

Page 52, No. 223.