United Kingdom House of Lords Decisions

You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Sir Peter Fraser of Doors v. Isabel Sandilands, Widow of William Black Esq; [1719] UKHL Robertson_209 (12 January 1719)
URL: http://www.bailii.org/uk/cases/UKHL/1719/Robertson_209.html
Cite as: [1719] UKHL Robertson_209

[New search] [Printable PDF version] [Help]

SCOTTISH_HoL_JURY_COURT

Page: 209↓

(1719) Robertson 209

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 47.

Sir Peter Fraser of Doors, Appellant

v.

Isabel Sandilands, Widow of William Black Esq; Respondent

12th Jan. 1718– 1719.

Subject_Presumption —

A person being sued in 1718 by the widow of one to whom, in 1697, he had granted a bond of pension for the consideration of managing the grantor's law affairs; though never demanded by the grantee during his life, the bond is supported and the money decerned for.

Subject_Holograph. —

Whether holograph or not being referred to the oath of the grantor of a bond, the term is circumduced against him for not deponing.

Subject_Costs. —

40 l. costs given against the appellant.

In July 1697 the appellant granted a bond of pension to the late Mr. Black, advocate, the respondent's husband, of 10 l. sterling per annum, to be paid at Whitsunday and Martinmas by equal portions, with interest after the respective terms of payment. The bond mentioned the consideration to be for Mr. Black's pains and management of the appellant's law affairs, and that it was to continue so long as the appellant had any law affairs. In July 1713, Mr. Black assigned the said bond to the respondent in trust for his children.

In 1715 the respondent, after her husband's death, brought an action against the appellant before the Court of Session for payment of the said bond and interest: stating that Mr. Black did, from the time of the date thereof till his death in August 1713, carefully manage all the appellant's law suits and other his affairs, but that neither the said pension, nor any part thereof, had been paid to him: and that the respondent, after her husband's decease, applied several times by herself and friends for payment of

Page: 210↓

the money due upon the said bond, but the appellant always declined payment. The appellant contended that the bond was null, the writer and witnesses not being mentioned and described therein. The respondent answered, that the bond being holograph of the appellant, the designation of the writer and witnesses was not necessary; and insisted that the appellant should be obliged to confess or deny whether it was holograph or not. On the 27th of June 1716, the Lord Ordinary “sustained process upon the bond libelled, on the respondent's proving the same holograph; and ordained the appellant to confess or deny the fact against the 15th day of July then next, under the certification contained in the act of sederunt.” No appearance having been made for the appellant, the Lord Ordinary, on the 18th of July 1716, “Held him as confessed, and decerned in terms of the libel.”

The appellant afterwards presented a representation, stating, that he had been abroad several years, and had not had any law affairs, and that Mr. Black had been paid several sums of money on account of the appellant's law suits, which ought to be deducted from the said bond, and that the same never having been demanded, was to be presumed to have been paid. The respondent answered, that if Mr. Black had meant to re-call the bond he should have given notice to the respondent's husband, that he might have been at liberty to take other business: and that in 1713 her husband had gone on the appellant's request to his house, 100 miles from Edinburgh, to settle some of his affairs, and that no presumption of payment could lie to a bond of this nature. The Lord Ordinary, on the 25th of July 1716, “Adhered to the former interlocutor, but sustained the foresaid defence of payment as relevant to be proved scripto of the said deceased Mr. Wm. Black, or payment to the respondent since Mr. Black her husband's death relevant to be proved scripto vel juramento of her the respondent cum onere expensarum in case the appellant succumb, and assigned the 6th of November next for proving in the terms above mentioned.” The appellant reclaimed, but on the 31st of July, their lordships “Adhered to the former interlocutors, and refused the desire of the appellant's petition.” And on the 16th of November 1716 the Court “Circumduced the term against the appellant for not proving payment, and decerned and ordained the appellant to make payment and satisfaction to the respondent of the said sum of 10 l. of yearly pension from the 12th of July 1697 to the term of Lammas 1713, and of the interest of each moiety of the said pension from the term of payment thereof to the term of Lammas 1713, which being accumulated into one total sum was declared to amount to 2821 l. 2 s. 6 d. Scots, and in like manner to make payment and satisfaction of the interest of the said pension from the aforesaid term of Lammas 1713, in time to come, during the not payment thereof.”

Execution being sued out upon this decree, the appellant brought a bill of suspension; and, after discussing the same, the

Page: 211↓

Court, on the 12th of July 1717, “Refused the bill, and adhered to their former interlocutor.”

Entered 23 Dec. 1717.

The appeal was brought from “a decree of the Lords of Session of the 16th of November 1716, and an interlocutor of the 12th of July 1717, and several other interlocutors”.

Judgment, 12 Jan. 1719.

After hearing counsel, l for her costs in respect of the said appeal.

Counsel: For Appellant, Abel Ketelbey. Geo. Leshe.
For Respondent, Rob Raymond. Will. Hamilton.

1719