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 BANKRUPT.
1777. August .

Johnston, &C
v.
Warden

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There have only been two decisions on that clause in the Act 1696, concerning the reduction of bonds, as granted for debts not contracted properly at the time. One is observed by Karnes and Falconer, Dempster against Kinloch, June 1750 ; another occurred 15th July 1777, in the case Warden against Johnston, &c.

In this case, Warden, as cautioner for Law, in a tack of the parks of Innerleith, finding that Law was, or would be in arrear, obtained from him an heritable bond and infeftment for L.300, over certain houses in Edinburgh, (January 1772,) not for relief of his engagement, as he ought to have done, but as for money lent; and, in May thereafter, he paid up said arrear, amounting not only to said L. 300, but to L.73 more ; for which last sum he also took another heritable bond, as for money lent to that extent, (29th June 1772.) From this, it appeared, that, at the date of the first heritable bond in January 1772, Warden had not only not advanced or lent any money to Law, but that he did not do so for five months thereafter ; and, even as to the second bond, it appeared that the narrative was false. It was true money had been advanced on the cautionry, but none had been lent; and further, as to both payments, it appeared, that, instead of taking a discharge of the rent to Law, he took only a discharge to himself and an assignation against Law. So that, if Warden had died, his representatives would have been entitled to have claimed on both debts ; first on the heritable bond as for lent money, next on the above assignation for relief of the cautionry. In a reduction of both bonds, on the above mentioned clause of the statute 1696, the Lords reduced the bond for the L.800; but, as to the other bond for L.73, they assoilyied, (August 1777.)

As to the bond L.73, a false narrative is not sufficient to render a deed null; see Dict, voce Proof; and, as to taking double securities, there is no law against it: only one of them must be used, or, if both, only to one effect.