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John Watson, Governor of Herriot's Hospital, v The Representatives of the Deceased William Forrester, Writer to the Signet. [1706] Mor 12335 (22 June 1706)
URL: http://www.bailii.org/scot/cases/ScotCS/1706/Mor2912335-110.html Cite as:
[1706] Mor 12335
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[1706] Mor 12335
Subject_1 PROOF. Subject_2 DIVISION I.
Allegeances how relevant to be proved.
Subject_3 SECT. III.
What Proof relevant to take away Writ.
John Watson, Governor of Herriot's Hospital, v. The Representatives of the Deceased William Forrester, Writer to the Signet
Date: 22 June 1706 Case No. No 110.
A cancelled back-bond, with notes on the back and margin thereof, bearing that the granter was to renew the same on certain terms, being recovered at the instance of the creditor, in an exhibition against the granter's representatives, the Lords allowed witnesses to be examined for proving the notes to be the granter's handwriting.
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John Watson, as debtor to the deceased William Forrester, having assigned him to several debts for his further security, got a back-bond from him to hold count; and he, William Forrester, having given allowance to one of these debtors, of L. 19 Sterling that John Watson was resting him, borrowed up his back-bond, in order to grant a new one, with the deduction of the said L. 19 but died before he renewed the back-bond, which obliged John Watson to raise an exhibition against William Forrester's children and their tutors, wherein they deponed and exhibited the retired back-bond cancelled, with notes written on the back and margin thereof, bearing, that William was to grant a new back-bond in such terms. John Watson then craved a diligence to cite witnesses, for proving that the notes on the back-bond are William Forrester's hand writ.
Alleged for the defenders, That it seemed an unprecedented piece of form, of dangerous consequence, to make up a writ in such a manner, since an uncancelled chirographum penes debitorem repertum præsumitur solutum; and far less could a cancelled bond, with notes thereon, found in Mr Forrester's custody the time of his decease, though never so well attested, to be his hand-writ, import an obligement upon him to grant a back-bond in these terms, or fix a trust upon his heirs: et frustra probatur quod non relevat.
Answered for the pursuer, Extraordinary cases must have extraordinary remedies; and yet the remedy proposed is most natural and rational here, where no writ is sought to be made up but what Mr Forrester's notes afford ground for, and nothing to be proved but that he writ these notes; 2do, Though the retiring of a bond by the granter presumes liberation, that præsumptio juris is elided and taken off by the notes upon the retired paper, if proved to have been written by Mr Forrester himself.
The Lords granted diligence to cite witnesses for proving the notes to be Mr Forrester's hand-writ.