Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ROBERT MACGILL, LORD FOORD.

John Horsburghe
v.
John Maxwell

Date: 6 December 1649

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Mr John Horsburgh pursuing, by bill, John Maxwell before the parliament, is remitted to the session: where the said Mr John Horsburgh, having delivered to the said John some Irish bonds, addebted by the folks of Duntreath to his umquhile father, craves redelivery of the bonds, or else that he pay him the sums contained therein; but it was excepted, that he, being an advocate, was not tied to prove redelivery, affirming that he had given them back to him. It was replied that he took a factory for the pursuit, and so was not in the case of an advocate. He duplied that it was only a procuration taken from the said Mr John, as use is, because he was a residenter in England. The Lords examined witnesses ex officio, and found it a factory; and, having taken the pursuer's oath whether or not he had gotten back the papers, he denied the same; whereupon the said John Maxwell, defender, was decerned to deliver those bonds, or else to make them up by proving the tenour thereof, and make them as effectual, as concerning the responsality of the parties, as if they were presently redelivered; and, for that purpose, gave him three whole sessions after this, to insist thereon. And herein it was disputed amongst the Lords, anent the probation of the tenour of the bond, how difficile it might be; both in respect of discharges, and in respect of the common rule of law, that instrumentum nominis apud debitorem repertum presumitur rescriptum et solutum.

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