The debtor being said to be sick on the day fixed for presenting; the cautioner was found liable, not having offered to produce him when recovered.
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Bruce of Newton being debtor to Callender of Craigforth, in the sum of 600 merks, by bond; and, being apprehended by caption, he, to relieve himself out of the messenger's hand, grants a bond of presentation, wherein Alexander Bruce, his son, is cautioner with him; whereby they oblige themselves either to pay, or present him at Craigforth's house, without a suspension, at a precise day therein-mentioned; at which day Alexander compears, and intimates to Callender, by a notary, that his father was fallen sick, and it was impossible for him to travel, but offered to produce him within some few weeks after when he should grow better; which Callender refused, because it was Alexander's single assertion, and no testificate produced. Callender having charged Alexander, on the bond of presentation, both for the penalty, and the original debt in his father's bond, he suspended, on this reason, that he was neither in mora nor culpa, for not presenting his father on the precise day, because he was then sick; and it were against humanity, et contra bonos mores, to oblige them to what is naturally or morally impossible; et nemo tenetur ad impossible, vel præstare casus fortuitos.—Alleged, Though his sickness (providing it was real and not simulate) did excuse at that time; yet this did not extinguish the obligation of presenting; but how soon he reconvalesced, and was able to come abroad, he was bound to have presented him.—Answered, Though these obligations be strici juris, and to be performed in forma specifica, yet that must not be understood judicially, but with an equitable latitude; and the offering him primo quoque tempore, on his recovery, cannot take place here, because I did that already, in so far as when I signified to you his indisposition and inability to travel, I likewise offered to present him how soon he grew better; but Callender unjustly refused to consent to a prorogation of the day; and that offer not being agreed to, the bond must be simply null as fully implemented, especially seeing he may have his person still, by which he has no prejudice, the debtor being in no worse condition now than he was at the time he should have been sisted: And, if sickness be a relevant ground whereon, by the Lords' act of sederunt, a prisoner may be let out during the continuance of his sickness, then multo magis ought it to liberate one from going to prison; and you should have required me to present him of new, which you never did; and modica mora, in such cases, makes not one incur the penalty, says Paulus, in l. 91. § 3. D. de verb. obligat. and Lanfrancus Balbus, decis. 345.—Replied, Your offering to renew your bond to a new day can never exoner you, though I had not accepted it; because I was not obliged to believe your assertion, especially there being no testificate from physicians of his sickness; and if this excuse were allowed, bonds of presentation should be rendered ineffecutual; for the party, by a little excess of drink, might render himself feverish, and those about him might be fully persuaded of his sickness, and so the creditor be eluded; neither was the offer sufficient to liberate from presenting him when he grew well, nor were they obliged to require him to his duty, seeing dies interpellat pro homine in all these cases; and such bonds must not be turned to shams. Some of the Lords were of opinion, that Craigforth's refusal to accept of his offer, on a prorogation of the term, did liberate the cautioner, and fully implement his obligation; but the plurality found, though he should prove his father was really sick at the time prefixed; and that he offered then to continue bound for some weeks, that did not free him, seeing he did not offer to present him when he recovered; and, therefore, found him liable for the penalty in the bond of presentation, and likewise for the original debt.
Fol. Dic. v. 1. p. 114. Fountainhall, v. 2. p. 222.
