Implement of a contract presumed after a long interval.
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Dunbar's predecessor being creditor to the predecessor of Sir Harry Innes in L. 1103:13s. Scots, the debtor, in 1682, became bound, in payment of this debt, to deliver 200 bolls of bear of that crop before the last of March 1683, under the penalty of L. 8 Scots for every boll undelivered. This obligation was in the form of a mutual contract, and the testing clause is in these terms:
‘In witness whereof, these are written by John Brodie, servitor to the Laird of Brodie, and subscribed with my hand, at Edinburgh, the 18th of November 1682, before these witnesses,’ &c.
This deed is signed by both parties.
On this obligation Dunbar of Boath pursued Sir Harry Innes for payment of the L. 1103:13s. Scots
Objected by the defender, The testing clause does apply particularly to neither of the parties' subscription, therefore the obligation is improbative, void and null; and supposing it might be applied to the subscription of one of the parties, if it cannot apply to the other party's subscription, it can have no effect; for, as the deed is a mutual contract, if both parties are not bound, neither is bound.
Answered, It was usual, in mutual contracts, to execute two deeds of the same tenor, each whereof was completed by the subscription of one of the parties. The deed produced was the one completed by the subscription of Innes, and was properly found in the custody of Dunbar the creditor. 2do, The testing clause does apply to each of the parties subscriptions taken separately.
The Lord Ordinary repelled the objection.
Pleaded, That the obligation was prescribed; and that, from the nature of the obligation, it being for the delivery of a quantity of victual within a certain time, under a high penalty of L.8 for every boll undelivered, the presumption was, that it was performed within the time, as it did not appear that any demand was made on this obligation, either for the victual or the penalty, for thirty-nine years after the parties contractors, were dead.
The Lord Ordinary, on account of an obligation granted to Dunbar's successor in the 1722, passing from the defence of prescription, but reserving the defence of payment, repelled that plea likewise; but found it presumed, that the victual was paid in terms of the obligation.
“On advising a reclaiming petition and answers, the Lords found it presumed, That the obligation in the contract, in the year 1682, was implemented, and therefor they adhered to the Lord Ordinary's interlocutor. See Witness.
Act. Hamilton Gordon.Alt. Lockhart.
Fol. Dic. v. 4. p. 129. Fac. Col. No 165. p. 294.
