Scottish Court of Session Decisions

Subject_1 IMPLIED CONDITION.
Subject_2 SECT. VI.

Effect of failure of the end in view in granting a deed.

John Rule Son to John Rule Apothecary in Dumfries,
v.
The Children and Representatives of John Reid Merchant there

Date: 24 July 1707
Case No. No 28.

A party granted bond to three persons, narrating that at the granter's death they had accepted the oversight of his interment and curatory of his children, which would require trouble and expenses, and therefore obliged himself to pay a sum equally among the three. The bond was found to be effectual, quoad one of the grantees, who died a short time after he had been at the granter's burial.

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The deceast John Rule Apothecary in Dumfries, having, by his bond, dated a little before his death, narrating, that John Corbet, John Corsbie, and John Reid, had, at his desire, accepted the oversight of his interment, and Children, during their minority, which would require trouble and expenses, obliged himself to pay six hundred merks equally among them betwixt and Whitsunday thereafter, with annualrent and a penalty; and John Reid having died after he had overseen the interment of the granter of the bond, and the term of payment was elapsed; John Rule son to the granter, raised a process against the Representatives of Mr Reid, for declaring the bond null as to his part, in respect it was granted ab causam quæ non est secuta; John Reid having died without being at any trouble or expense in overseeing the defunct's children, which had been the main consideration for giving of the bond, since the going to his burial was a common neighbourly duty and work of humanity; so that the defenders could no more have benefit by the said bond, than if it had been granted to him for being advocate or agent, or factor to the granter's children, and he had died without performing any office of that nature, as a prentice-fee cannot be demanded when the master dies before the apprentice get any instruction.

Answered for the defender; The bond is a simple obligement, notwithstanding the narrative, which is neither quality nor condition thereof; for though that was the motive, it was to make no stop to the payment: And de facto John Reid survived the term of payment. Nor is the case of a bond for prentice-fee to the purpose; and as to a bond granted to an advocate for his service, the sum therein would be due, though the granter should have no business, and never employ the advocate.

Replied for the pursuer, whatever might have been pretended, if the money had been actually bona fide uplifted and spent, it cannot be demanded now when it is yet in the debtor's hand, and the cause of the bond never performed.

The Lords assoilzied the defenders, and found the bond good in their favours, in regard their father had survived the term of payment, and had overseen Mr Rule's interment, and had accepted the curatory of his two children.

Fol. Dic. v. 1. p. 426. Forbes, p. 193.