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Scottish Court of Session Decisions >>
Seatoun v The Laird of Craigivar. [1673] Mor 15894 (3 July 1673)
URL: http://www.bailii.org/scot/cases/ScotCS/1673/Mor3615894-028.html Cite as:
[1673] Mor 15894
One obliged to perform an act a certain term, is bound to do whatever is requisite for performance.
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Craigivar’s grandfather having, by his bond, bearing, “for sums of money,” obliged himself to cause a servant of his to subscribe a translation of a bond due by Seatoun of Disblair, at a certain term, mentioned in Craigivar’s bond, which is in anno 1633, which bond doth also bear, “that Pitmeddan had received Disblair’s bond, and the assignation;” Mr. Alexander Seatoun, now of Pitmedden,as representing his grandfather, by progress, pursues Craigivar, as representing his grandfather, for payment of the sums contained in Disblair’s bond, seeing the translation thereto was never granted until Disblair became altogether insolvent. The defender alleged, Absolvitor, because his good-sir was neither in culpa nor in mora in procuring the translation, unless it were alleged, that Pitmedden had produced to him the bond and assignation, which is acknowledged to be received by him, and without which the translation could not be drawn. It was answered, That Craigivar having obliged himself to obtain the translation at a certain term, dies interpellat pro homine, and he was in mora after the term, unless he had required Pitmedden to produce the bond and assignation, and had not done the same; for being obliged for a deed at a term, he was obliged to do all things requisite for performance of that deed; and it cannot be thought but that he hath kept a double or minute of the bond and assignation, for forming the translation, seeing his bond is not granted conditionally upon production of the assignation,
The Lords repelled the defence, and found the pursuers not obliged to offer the bond and assignation, but that the defender, being obliged to perform at a term, should have demanded the same, if he had had need of it.
