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Scottish Court of Session Decisions >>
Captain James Oswald v Captain Thomas Gordon. [1711] Mor 11521 (26 June 1711)
URL: http://www.bailii.org/scot/cases/ScotCS/1711/Mor2711521-196.html
Found in conformity to Hay against Hall, No 196. p. 11520.
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Captain Oswald having, in July 1706, got a ticket from Captain Gordon for L. 770 Scots, as the price of rigging furnished by the former to the latter for The Royal William, payable when the Martinmas cess, imposed for outrigging the said ship, is paid;—in November 1707, Captain Gordon drew a bill on John Gordon, writer in Edinburgh, ordering him to pay the said L. 770 to Captain Oswald, out of the first and readiest money due to the drawer out of the Equivalent, and to retire his note, which John Gordon accepted in the foresaid terms. Captain Oswald seeing little appearance of getting payment out of the Equivalent, pursued Thomas Gordon upon his first ticket.
Alleged for the defender; The ticket was innovated by taking the bill for the same sum; at least was explained, and the fund of payment determined and agreed to, so as Captain Gordon could not be liable till that were got in and uplifted.
Replied for the pursuer; Innovation is not to be presumed or inferred from conjectures, but a posterior obligation is understood to be in corroboration of a former, unless innovation was expressed; § 3. Instit. Quibus modis toll, oblig. L. ult. C. De Novat. Stair, Instit. B. 1. T 18. § 8. And the case, 27th July 1666, Newburgh against Stuart, observed by Dirleton, No 124. p. 1543.—2do, There is no definite term of forbearance, or new term of payment expressed in the corroborative right, but only a new additional rund of payment pointed to the creditor.
The Lords found, that the ticket was payable at the term when the cess fell due by the country to the public; and that Captain Oswald's taking the posterior bill did not innovate the former ticket.
Fol. Dic. v. 2. p. 150. Forbes, p. 511.
*** A similar case was decided, 10th July 1706, Brand against Yorston, No 128. p. 1549. voce Bill of Exchange.
