Thomas Drummond of Ricarton v. The Creditors of Sir William Nicolson
Date: 3 February 1697 Case No. No 105.
Found, by a narrow plurality, that witnesses might be admitted to prove, that one of the co-obligants in a bond, was cautioner only.
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I reported Thomas Drummond of Ricarton against the Creditors of Sir William Nicolson. He and Ricarton were bound as conjunct principals in two bonds, the one for 6000 merks to Mr Edward Wright advocate, and the other of 4000 merks to Sir John Young of Lenny. Ricarton alleging, That he was but on the matter cautioner in both, though, to please the creditors, he had bound as correus, he raises a declarator against Sir William, to have him decerned to relieve him of the whole 10,000 merks; but Sir William dying medio tempore, and thereby having lost his oath, he gives in a bill to the Lords, in 1687, craving witnesses might be examined ex officio, to lie in retentis, for proving that Sir William was truly principal in both the debts, and the money was paid to him, and applied to his use, and that there were sundry treaties and communings, where Sir William was content to give him a bond of relief; but he craved it might bear an obligement to pay and retire the bonds betwixt and a precise day, at which Sir William's lawyers scrupling, he died ere it was perfected. The Lords allowed witnesses to be examined on this bill; and the same coming now to be advised, the Creditors of Sir William contended, seeing it was before answer, and the relevancy yet entire, the procedure was altogether illegal, seeing the witnesses were neither old nor valetudinary, not any then to contradict and defend; and the matter was nowise probable by witnesses, tending to take away clear writs, and to prove the omission of words, wherein witnesses are very liable to mistake; and though matters of fact cadunt sub sensu, and so may be proven by witnesses, yet delivery of money is not, because, though witnesses see the numeration, yet non constat quo animo it is given, and it may be upon quite another account than they apprehend it to be. Answered for Ricarton, That there is nothing more ordinary for the Lords than to allow witnesses to be examined to lie in retentis, being a casus arbitrarius, and much in the Judge's discretion, and though regulariter writ cannot be taken away by witnesses, yet it suffers many exceptions; for how many bonds have been annulled upon extortion and circumvention; and yet the qualifications of the force, fear and fraud, may be proven by witnesses? A bond may be declared extinct, on proving by witnesses that they saw it lying beside the debtor retired. A bond bearing assignation to mails and duties can be declared satisfied, by witnesses deponing the creditor intromitted with these mails and duties. How many bonds have been explained by witnesses deponing on dubious clauses therein contained, or taken away by proving a trust? And here it is not nuda verborum emissio that Ricarton has proven, but clear facts et rei interventus, that bonds of relief were drawn, and the money actually converted to Sir William's own use, &c. which was both convincing and pregnant. The Lords, by a plurality of nine votes against eight, (the bench being full) did sustain Ricarton's declarator as relevant, and found, by the testimonies adduced, that he was only cautioner, and that Sir William was bound to relieve him of the whole. He carried it by the votes of three extraordinary Lords; and many differed, thinking there was locus pæenitentiæ, till Sir William had signed the bond of relief and delivered it; and here there, was neither.
Fol. Dic. v. 2. p. 222. Fountainhall, v. 2. p. 762.
