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Scottish Court of Session Decisions >>
John Beg v Browne of Fordell. [1663] 2 Brn 312 (2 December 1663)
URL: http://www.bailii.org/scot/cases/ScotCS/1663/Brn020312-0600.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER LORD FOUNTAINHALL.
John Beg v. Browne of Fordell
Date: 2 December 1663
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Margaret Adamsone, by her bonds under her hand, granted her, in annis 1642, 1643, 1644, 1645, to have borrowed at sundry times, for performing sundry her necessary affairs, from Helen Beg, 980 merks, with the usual annualrent thereof. The said Margaret Adamsone marrying Jo. Browne of Fordell, bears to him William and Sir Jo. William, in anno 1646, with consent of his curators, in corroboration of his mother's bonds, binds and obliges himself to pay the said sum to the said Helen Beg. Afterthe granting of this his bond of corroboration, William dies. Sir Jo. Browne succeeds him, as also to the estate of Fordell. Sir John being killed, there is a son called John, that succeeds him. In the mean while, Helen Beg dies. Her brother Jo. Beg, in Nether Cramond, confirms her testament, in anno 1650, and gets himself nominated her executor dative; and so on that title charges the said John Browne to enter heir to his father, Sir John, in anno 1653. This John dies, whereon his sister Antonia Browne becomes heretrix of all. Now he charges her to make payment to him of the said sum of 980 merks contained in the bond of corroboration granted by William Browne, her uncle on the father's side, and that as heir to her brother, who was again heir to their father, Sir John, who again succeeded to his brother William, who by his bond of corroboration obliged him to pay that debt of his mother, M. Adamsone. For proving of the summons, there is produced the bond of corroboratien; Helen Beg's testament confirmed, under the subscription of James Wright clerk to the commissariot of Edinburgh, wherein this debt is also confirmed; item the letters of charge to enter heir, executed against her brother.
Allleged for the defender, that no process can be granted on this bond of corroboration, unless the four principal bonds thereby corroborated, were produced.
Answered, that process must be granted upon the said bond, without necessity to produce the bonds corroborated; unless the defender offer her to prove that the said bonds were paid or discharged.
Replied, that notwithstanding of this answer, the former allegeance of a necessity of production of the bonds corroborated stands relevant: seeing it is an unanswerable presumption that the said principal bonds, being satisfied, have been retired; only the bond of corroboration has been omitted to have been given up.
This allegeance and reply the Lords repelled, in respect of the answer thereto. Then alleged by the defender, that the haill four bonds corroborated, are in the said Antonia Browne and her curators' hands, as cancelled and satisfied bonds. This the Lords found relevant, and assigned them a day for proving thereof, by production of them. Which they failyieing to do, the term is circumduced against them; and decreet pronounced ordaining her to make payment to the pursuer, of the said sum.
Act. Norvell.Alt. Mr. Laurence Oliphant and Mr. William Maxwell. J. A.
Signet MS. No. 15, fol. 5.
