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Scottish Court of Session Decisions >>
Sir Donald Bayne of Tulloch v Sir Robert Gordon of Gordonstown. [1697] 4 Brn 384 (23 November 1697)
URL: http://www.bailii.org/scot/cases/ScotCS/1697/Brn040384-0786.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Sir Donald Bayne of Tulloch v. Sir Robert Gordon of Gordonstown
Date: 23 November 1697
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In an improbation between Sir Donald Bayne of Tulloch, and Sir Robert Gordon of Gordonstoun, certification is craved against a bond dated in 1640, which had been the ground of an apprising, and whereof an extract was only produced, and, after search, the principal bond could not be found, as appeared from a testifícate of the clerks, and which coincided with some of those years whereof the warrants were drowned at sea, coming from England in 1661. On the one hand, a bond may be forged, and, after registration, taken out again with a little money; and, if the extract be sufficient to satisfy the production in an improbation, there is a foundation laid to encourage all knavery. On the other hand, what can the lieges do more but give in their principal writs to the Register; and, if they be lost, either by casual accidents or the faults of the keeper, shall the party ingiver suffer for that?
The Lords, in this case, abstracted from the general point, which is of great moment; but inclined to refuse certification here, in regard the debt was old and much diligence led upon it, and never quarrelled till of late, which took off the suspicion of its being false. Yet, in regard it was alleged that the debtor had been charged with horning on this bond in his lifetime, which is yet a farther adminicle of its verity, they ordained the horning, before answer, to be produced, which would tend yet more to clear the affair. See certification refused against principal bonds, in a similar case, 20th November, 1666.
