Mr William Gordon v. the Heirs and Daughters of John Johnston of Polton, and James Wilkie Husband to one of them
Date: 5 February 1703 Case No. No 75.
A bond granted to a defunct was amissing, and thereafter understood to be in the hand of the cautioner without discharge or assignation. The heirs of the cautioner were assoilzied from payment, there being a memorandum on the back by the cautioner, mentioning that it was paid.
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Bruce of Newton as principal, and John Johnston of Polton as cautioner grant bond to Mr William Gordon, writer to the signet, for 5000 merks. Mr William dying suddenly on a Sabbath day at Leith, his papers were not in order, and particularly Newton's bond was amissing; at last, it was informed, that it was in Polton's hands, whereupon Mr Gordon's son, as executor confirmed, pursues Polton's heirs for exhibition and redelivery of that bond, alleging he had only got a loan of it for framing a bond of relief from Newton. Their defence was absolvitor, because I am precisely in the case of that rule of law, chirographum apud debitorem repertum præsumitur solutum; and the being mine in the debtor's own hands, presumes payment, unless he can instruct any other way how I came by it, there being nothing more usual in personal bonds, where neither infeftment nor any diligence by registration, horning, adjudication, or otherwise has followed thereupon, to rely on the retiring and cancelling them without any further solemnity of a discharge, or other receipt, declaring the payment. Answered, That brocard takes place where it is in the hands of the principal debtor; but Polton was only cautioner, and such use not to pay without either a distress, assignation, or discharge, 2do, The maxim cannot hold in this case, for Polton, for relief of this and sundry other cautionries wherein he stood engaged for Newton, took an heritable bond of relief, wherein he is expressly obliged to retire the bonds with assignations or discharges, and so he was in mala fide to rely upon the naked retiring of this bond due to Gordon, contrary to the faith of his own obligement. Replied, There is no difference between a cautioner and a principal in this case, both being correi debendi, and bound conjunctly and severally; and the Lords sustained it where a cautioner had got up his bond without any discharge, or other document of payment, 26th June 1623, Carmichael contra Hay, No 73. p. 11404.; and the taking of the bond of relief does not alter the case, for by it he became as it were principal; and it is jus tertii to Gordon's heirs to object it, whatever might be competent to Newton. Then Polton's representatives alleged farther, that though they were abundantly secure by the defence of instrumentum apud debitorem, yet, to convince the Lords of the reality of it, he conjoined the following presumptions, viz. a note and memorandum on the back of the bond, wrote by Bailie Johnston's own hand, bearing both the time and manner of the payment, with a fitted account under Sir John Hall's hand, mentioning that Polton had borrowed from him and Bailie Reid 5000 merks to give to Mr William Gordon, who paid it to the Marquis of Athol for a deputation from him to keep the Privy Seal. Answered, These resolve into the debtor's own assertion, and the declaration of Sir John Hall, a stranger, who might be made believe that story, and so can never be probative against Mr Gordon's heirs unless they show something under his hand; and the whole seems to be nimia et affectata diligentia, and bonds are not to be taken away on such slender presumptions. The Lords sustained Polton's representatives their defence on having the bond retired and fortified by the above adminicles, and therefore assoilzied from the exhibition and delivery.
Fol. Dic. v. 2. p. 138. Fountainhall, v. 2. p. 178.
