Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
James Ross v. Alexander Drummond of Eastfield
Date: 29 November 1699
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James Ross, as assignee by Skein to a bond of 1200 merks, granted by the deceased Samuel Drummond of Carloury, and Mr Alexander Drummond of Eastfield, his brother, charges the said Mr Alexander for payment. Who Alleges absolvitor; because Skein having afterwards lent Carloury 300 merks more, he got a new bond from him for the whole £1000 Scots, including the former 1200 merks; whereupon the prior bond of 1200 merks, wherein I was bound, became extinct, and was retired, and found in the hands of one Layng, Carloury's agent, and from whom it was viis et modis gotten up; and therefore, being instrumentum apud debitorem repertum, prœsurnitur solutum.
Answered,—Though there was a posterior bond given for the £1000, comprehending the 1200 merks formerly lent, yet that was accepted in contemplation it bore the said Mr Alexander to be also bound as conjunct debtor with his brother Carloury; but, after trial, his name was found to be added by forgery; and so, the creditor discovering the cheat, he recurred to the old bond of 1200 merks, the second being null ob causam datam causa non secuta; and it is enough he is cheated out of the 300 merks of superplus, and its annualrents, by the two brothers, though he lose not the whole. And Layng was writer for Skein, the creditor, as well as for Carloury; and so its being once in his hands infers no presumption of its having been retired by the debtor.
The Lords repelled Mr Alexander's reasons, and found him liable on the first bond.
