BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
George Monteith v Mr Hepburn. [1685] Mor 3453 (15 January 1685)
URL: http://www.bailii.org/scot/cases/ScotCS/1685/Mor0803453-005.html Cite as:
[1685] Mor 3453
Whether a bond deposited with the writer was to be presumed delivered to the creditor or not; or what proof?
Click here to view a pdf copy of this documet : PDF Copy
A bond of borrowed money granted by Robert Hepburn to for the price of a tenement sold to the granter, being left signed in the hands of Mr James Elphingston the writer, George Monteith, a creditor of the seller, arrested in Mr Hepburn's hand, and got up the bond from Mr Elphingston, upon a ticket to re-deliver it, and pursued a forthcoming of the money.
Alleged for Mr Hepburn; That the bond was left with him till a procuratory of resignation should be delivered, which was wanting.
Answered; Though the seller was obliged to give a sufficient progress, and particularly procuratories, yet the right cannot be quarrelled for want of these, he and his authors having been forty years in possession, especially seeing the defender cannot prove interruption within the forty years. 2do, The bond being in the pursuer's hand, Mr Elphingstoun cannot qualify any terms of depositation, unless it be proven by the pursuer's oath, that it was deposited; and it were dangerous to allow havers of writs, especially the writers, to make terms of depositation, when perhaps the writs were lodged in their hands only custodiæ causa.
Replied; Where a writ in favours of a person is delivered to him, or in his possession, which imports delivery, comes forward in the possession of a third party, it cannot be pretended to have been deposited by the debtor, seeing the witnesses insert, or others, may prove the delivery. 2do, The bond in this case is not proven to have been received from Mr James Elphingston by the pursuer's oath, so as he might adject a quality, but by his note for re-delivery. 3tio, No clause in the bond is conceived in favours of the pursuer, who has only a consequential interest as creditor to the creditor in the bond.
Duplied; A creditor's creditor may, by arrestment or assignation, repeat all defences competent to the creditor their debtor.
The Lords, before answer, ordained the creditor in the bond to depone if it was delivered to him, or only deposited in the writer's hand.
