Scottish Court of Session Decisions

Subject_1 FOREIGN.

Gullin
v.
Hendley

1741, Nov. 24.
Case No. No. 1.

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One sued on an English double bond long after 20 years, first pleaded solvit ad diem, which imports no more than a presumption after so long time that the debt was paid;—and that being overruled because the creditor lived out of the kingdom, the next defence pleaded was non est factum, in order to put the creditor to prove the bond. The Ordinary found this defence not competent after the other had been overruled, and the Lords adhered without a vote. I gave no opinion, because it was a matter of English law, but both President and Arniston agreed. The President added a further reason, that a payment was marked on the bond.

*** (The case Morison against Strachan (Gordon) referred under the above case is No. 22. voce Bankrupt, which, in the relative note, is mentioned to have been continued till the following Tuesday. Lord Elchies's note on that day is as follows:)

In January and February 1744 Gordon consigned to Morison stockings, and remitted to him a bill, both which he was directed to apply in payment of a bill of Gordon's due at London. Morison sold the stockings, but the purchaser being his creditor retained the price,—and he discounted or sold the bill, and did not apply it as directed. He broke in March, and in April there went against him a commission of bankruptcy. He surrendered himself and his effects and gave up lists of his debts, and inter alia this debt of Gordon's. But Gordon did not claim before the Commissioners, and Morison got the Chancellor's certificate that he had complied with the statute. Gordon sued him in this Court and recovered decreet. Morison came lately to Scotland and was taken with caption at Gordon's instance. He presented a bill of suspension and liberation on the Chancellor's certificate, which with the answers Strichen reported. The Court was divided. Many thought that the certificate would have been of no effect here, even ex comitate, but because of the precedents Marshall and Yeaman against Spence, and Christie against Spence, were for a fuller hearing before determining finally, and therefore would have passed the suspension in order to try the question even without caution, but would not pass the liberation without caution at least judicio sisti,—and upon the vote it carried to pass upon caution judicio sisti when he shall be called for.