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.
Lord Northberwick v. Sir Alexander Hope of Carse
Date: 9 January 1712
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Lord Northberwick, President of the Session, against Sir Alexander Hope of Carse. It being alleged that Sir Alexander granted bond, in 1691, to the Mistress of Bargeny for 1000 merks; and the bond miscarrying after her death; the President, confirming himself executor-creditor to her, pursues Sir Alexander, and offers to prove by his oath that he granted her a bond for that sum.
Answered,—Esto he had given such a bond, it is noways relevant to make it up by his oath; because the not producing of it presumes it to have been satisfied and paid, or retired; and de non existentibus et non apparentibus idem est judicium; and therefore it is not sufficient to prove its once existence by his oath, unless you likewise say it is yet resting owing unpaid. In which terms he is willing to depone. It may be very true a bond was granted, but it is no consequence to infer it is still due, unless it were produced, or the tenor of it proven, with a good casus amissionis instructed; for there is nothing more frequent than to retire personal bonds, where no registration or diligence has followed, and cancel them, without taking any discharge. And it were a most dangerous preparative to sustain such a libel:— “You once granted a bond; ergo it is still owing, or you must prove quomodo you paid it.” If so, thousands who thought themselves secure by retiring their bonds, would be catched; especially where the creditor is dead, by whose oath I could have proven a compensation or paction, which now I have lost.
Replied,—To refer simply to his oath that he had granted a bond, it is acknowledged were not relevant; but as it is qualified, he cannot evite deponing; viz. whether or not he paid it to the mistress, or any in her name, or by her warrant; and whether he retired the bond, and who delivered it to him. For him to say he once did give her a bond, but it is not now resting, is to depone in jure, and wrap up the fact in a generality, ubi latet dolus; his excuse being that the mistress's mother was owing him the like sum, and she promised to allow it in his bond; for that were to make up her promise by his own oath: therefore he must depone the true matter of fact, and the Lords, at advising his oath, will declare whether the qualities he adjects are relevant, competent, or intrinsic; but he must not judge on their relevancy himself, by deponing on a point of law, and imagine that will exoner him.
The Lords, before answer, ordained him to depone if he granted such a bond; if he paid it in whole or in part; if he got it up; how; and from whom; and on any other pertinent qualities he thinks fit. For what if one should find his own bond accidentally lost, or the creditor's servant take it off his master's table or cabinet, and for a small reward deliver it up to the debtor? It is true, in the quinquennial prescription competent to tenants after their removal from the ground, it will not be relevant to offer to prove, by the tenant's oath, that he was under tack, and possessed so many years, and therefore must pay the rent; but they must prove, either by a writ under his hand or his oath, that the rent is yet owing. But, in bonds, the Lords have been in use to take all manner of expiscation and trial how the same came to be retired or paid. And if he clearly depone that he either got it up on payment or transaction, he will not be put to prove it, but he will fall to be assoilyied; and, on the other hand, if he can neither say he paid it, nor got it fairly delivered up to him (though gratuitously,) his oath will never exoner him.
