Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 REGISTER.

Ralston of Ralston, &c Petitioners.

Date: 10 December 1775

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A bond for L.1300 had been recorded in the Sheriff of Renfrew his register. The debtor having gone to Granada, it was found that an extract of the bond from the Sheriff's Register was, in their courts, held to be a voucher of the debt. There were several persons interested in the bond; some of them for the annualrent,—some for the fee,—some of the last were minors; and the principal sum was declared not upliftable by the creditors, without the consent of certain persons as trustees for these others. The creditors and trustees applied, by petition, to have up the bond, in order to suit execution upon it in Granada, and recover payment. The Lords, 7th December 1775, pronounced this interlocutor:—“Grant warrant to, and ordain the Sheriff-clerk of the shire of Renfrew, in whose books the within-mentioned bond is recorded, to deliver up the same to the petitioners, upon their rinding sufficient caution, and lodging a bond with the clerk to that purpose, to redeliver the said bond to him, or his successors in office, keepers of the said register, under the penalty of L.1300 sterling, and that betwixt and the 6th day of June 1777.

Against this interlocutor the parties petitioned, setting forth, that, as the intention of getting the bond out of the register, was to procure payment; so, if payment was procured, the bond fell to be delivered up to the debtor, and could not be returned. Upon this the Lords remitted the petition to the Ordinary on the Bills, and upon his report they pronounced an interlocutor,—of consent of the petitioners their offering the caution aftermentioned, “ordaining the bond to be delivered in terms of their former interlocutor, but declaring that the caution should be either to return the bond as above, or to apply the sums recovered, from the debtors in said bond, precisely for the purposes mentioned in the bond itself, and for the behoof of all concerned.”

This is now held to be a precedent, and has been followed in other cases, 27th January 1776, Clark.

Quere. Should an application of this sort be made to an inferior judge, sheriff, commissary, &c., how must he proceed? In June 1764 a petition was given in to the Sheriff of Edinburgh, setting forth that, in order to carry on a suit in England, it was necessary to act upon a principal bond registered in his register. They offered caution to return the bond. See a case by Forbes.

In a case marked by Kilkerran, p. 479, Lundie, petitioner, the Lords granted a like warrant without caution. In this case nobody appeared to have interest in the bond except the creditor-petitioner. They appointed the fact to be marked on the margin of the record.