Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, Reported By REPORTED BY WILLIAM FORBES, ADVOCATE.

Sir William Sharp of Stoniehill
v.
The late Archbishop of Glasgow

Date: 26 June 1706

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Sir William Sharp having charged the late Archbishop of Glasgow, to make payment of L.33. 6s. 8d. Sterling, contained in a bond granted by Mr. Robert Mortimer as principal, and him as cautioner, to John Beddel, merchant in London, the charger's cedent; the bishop suspended upon this ground, That the bond charged on is a relative writ, bearing in gremio this clause, that if payment be made of the foresaid sum of money, by virtue of a bond English form, signed and sealed by me the principal party, of the date of my subscription, then this obligation shall be null; which clause liberates the cautioner, unless the charger could produce the principal bond to which the Scottish bond relates. For when a bond cannot be produced, instrumentum penes debitorem, or which cannot be shown, præsumitur solutum; unless there be a clear evidence that it could not be satisfied : as, the term of payment was not come, or some casus amissionis, viz. incendii, rapinæ, or the like libelled and proved. And the charger was in mala fide, to accept of an assignation to the bond after the Scottish form, without getting up the principal English bond, with a conveyance thereto. For as the principal debtor, had he been charged upon the Scottish bond, might have required up that which he signed after, the English form, unless it were lost, and the casus amissionis condescended on and proved ; in which case the principal debtor would have been secured by caution : so this is much more competent to the suspender, his cautioner, who, for want of the principal bond, wants a part of the security he should be assigned to for his relief; seeing the English bond would afford summary diligence and execution in England, which is not allowed on a Scottish bond. But then again the assignee could not discharge the principal English bond; in respect he had no right to it.

Answered for the charger,—The bond charged on is valid and obligatory of itself, without the support of any other writ. 2. The most that in law or reason can be inferred from the above mentioned clause, is, that if the first English bond was paid, the bond charged on is null; which payment must be proved by the suspender, who founds upon it. For to presume that the English bond is paid, because not produced by the charger, is sine lege loqui. And why might not he take assignation to the one, without inquiring after the other, or whether it was extant or not at the time; seeing the bond, wherein the suspender is bound, is an absolute, complete, and valid right; as well as indorsations use to be taken upon one of two bills of exchange for the same sum, without calling for the other ?

The Lords repelled the reasons of suspension, unless the suspender would offer to prove payment of the bond granted by the principal after the English form.

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