Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Sir James Hamilton's Children v. Sir William Menzies
Date: 30 June 1709
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The Children of Sir James Hamilton, Lord Halcraig, as executors to him, pursue Sir William Menzies, their uncle, for intromission with sundry of their father's debts, and particularly for payment of L.1500 Scots contained in a ticket granted by him to Lord Halcraig in April 1698.
Alleged for Sir William, 1mo,—That, after the date of that ticket, Sir William granted to my Lord Halcraig two bonds, one for 10,000 merks, and another for 2000 merks; and it may be rationally presumed, that the lesser sum in this ticket has been cast in and included into one of these two bonds.
Answered,—That posterior bonds are not interpreted in law to include former obligations, unless it be specially expressed or demonstrated that the posterior include the former: for how many different instructions of debt are produced, so many separate debts are existent: As has been oft decided, as Durie observes, 20th February 1639, Lord Cardross against the Earl of Mar, where both securities were found to subsist together, unless the second had bore to be in satisfaction of the first.
2do,Alleged for Sir William,—That Halcraig, by a missive letter posterior to the said ticket, acknowledged he had received from him all money he had lying by him of his; which plainly comprehends this ticket, seeing it was by a precept on Gavin Plumber, which is equivalent to lying money.
Answered,—The discharge in that missive can never extend to this ticket, but only to what money Halcraig had in specie lying beside Sir William, by way of custody and depositum; for these contracts are toto cœlo different from each other; the ticket is mutuam, where the dominion of the money passes from the lender to the borrower, (contrary to Salmasius his opinion,) and the periculum est debitoris, if it perish: But, where I lay a bag of money beside a friend, that is only depositi vel custodi causa, and the property still remains with me; and if, casu fortuito by fire or otherwise, it be lost, it perishes to me. And therefore this letter can never comprehend the ticket, or import a discharge thereof.
3tio, Sir William founded on another letter of Halcraig's, desiring him to borrow 2000 merks for him; which no man of sound judgment would have done, when the person he employs to borrow it was owing him the like sum; for then he would have urged him for the payment.
Answered,—This letter bears its dittay in its bosom; for it bears, I will have use for your money at Martinmas, and take it altogether; and therefore borrow this 2000 merks for me in the mean time.
The Lords thought there was very great presumptions of this ticket being paid, or included in these posterior countings; yet, seeing it was not retired, (as it ought to have been,) and that a discharge of lying money can, in no grammar, extend to a bond of borrowed money; therefore they repelled all the three defences, in respect of the answers, and found the L.1500 in the ticket still due.
