Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

John Grant of Auchriachan,
v.
the Duke of Gordon

Date: 23 June 1710

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John Grant raised reduction of a bond granted by Robert Grant in Tombreck, his father, in April, 1686, to the Duke of Gordon, for 2000 merks of principal, with annual-rent and penalty; and of a bond of corroboration thereof granted by himself, in November, 1705, after his father's decease; upon this reason, that the original bond, granted by Robert Grant, was for no onerous cause; and not to be paid, providing the granter behaved himself dutifully to his Grace, while he continued his tenant, and should never militate against his heirs, in case he happened to die before any action intented thereon: which was offered to be proved by the Duke's back-bond, in the hands of Gordon of Glastirum; for recovering whereof, the pursuer craved a term and diligence. He pleaded, that his father having never misbehaved towards his Grace, nor been sued in his lifetime, the original bond was void and null: and the bond of corroboration, granted errore facti alieni, behoved to fall in consequence; seeing ubi principalis causa non subsistit, nec ea quæ sequuntur, locum habent.

Answered for the defender,—1. The pursuer cannot have a term assigned for recovering the back bond; which, being his own evident, he ought to have produced in initio litis. 2. Esto such a back-bond were produced, the pursuer could found nothing thereon; since his granting the bond of corroboration imported that he renounced all exceptions against the debt, passed from the back-bond, and acquiesced in the alleged miscarriage of his father.

Replied for the pursuer,—1. He must needs have a diligence for recovering the back-bond, since he condescends upon the haver, who will not part with it till he be compelled. 2. Though the pursuer, by granting the bond of corroboration, might be understood to have renounced, and past from objections against the bond corroborated, upon any intrinsic nullities, as the want of witnesses, or the writer's designation, or the like; yet it is ever competent to the granter of a corroboration, to except, that the debt in the original bond is not due; especially where the exception is founded upon the creditor's own fact and deed, as that the original bond was discharged by him: and upon the matter, the back-bond founded on by the pursuer imports a discharge.

The Lords found the reason of reduction relevant, and assigned to the pursuer a term to recover the back-bond.

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