Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
John Ker and Rachael Ker v. Wauchop of Niddry
Date: 25 July 1694
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The Lords advised the cause pursued by John and Rachael Kers against Wauchop of Niddry, for payment of £1000, contained in his father's bond. The Lords, ex officio, had examined witnesses on sundry presumptions, that it was granted ob non causam, for a transaction and disposition in 1654, between him and Ker of Lochtour, which never took effect; and, having advised the probation now, they find it proven that it was so granted, and therefore assoilyied. Though this be a dangerous preparative, to take away clear bonds by witnesses' depositions, yet there was so clear a chain of presumptions connected here, that the Lords were convinced that this bond was granted in contemplation of the disposition then given, and which never took effect, but was passed from by entering into a new bargain in 1661, where two thousand merks is advanced in money, and a bond for 10,000 merks given, and the old £10,000 bond is forgot to be retired: and thir pursuers' mother lived twenty-one years after, and never claimed the first bond, but accepted annualrent of the second yearly; which she would not have done, if the first had been a perfected bargain.
