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Scottish Court of Session Decisions >>
Hop-pringle v Ker. [1630] Mor 12553 (22 January 1630)
URL: http://www.bailii.org/scot/cases/ScotCS/1630/Mor2912553-438.html Cite as:
[1630] Mor 12553
If probative of its Onerous Cause against Creditors and Donatars of Escheat.
Hop-pringle v. Ker
Date: 22 January 1630 Case No. No 438.
A bond for borrowed money, granted by a bankrupt to a conjunct and confident person, found to prove its onerous cause.
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In a reduction of a bond of 40,000 merks granted by the Lo. Borthwick to Mark Ker, and whereupon Mark had comprised, at the instance of the said Hoppringle's prior creditors to the Lo. Borthwick, founded upon the statute of dyvoury, viz. because the said bond was made to a confident person without any true, just, or necessary cause, and in the prejudice of the pursuer, his anterior creditor, subsuming in terminis, as the act bears; the Lords found, That the pursuer ought to prove that part of the reason, viz. that the bond was made without any just or necessary cause, either by writ or by the oath of the party-receiver of the bond, and that they would not respect it as a negative, which proved itself; neither found it necessary that the creditor, receiver of the bond should be holden to prove any cause of the debt anterior to the bond, or by any other manner of way, but by the bond confessing the debt, which was sustained; for, when parties borrow monies, or contract mutually, there is no other way to prove the borrowing or contracting but by the writ then made at the time when the same is done; for there can be no other thing extant therefor before the writ then made, as is daily seen in all bargains and obligations betwixt parties; and therefore the Lords found, That the reducer of any such bond upon that act ought to prove that negative, and that the said act required and ordained the same to be proved, either by writ or oath, as said is, and that no other probation ought to be admitted thereupon.
Act. Advocatus & Cunninghame.Alt. Nicolson & Craig.Clerk, Gibson.
Fol. Dic. v. 2. p. 250. Durie, p. 484.
*** Durie reports a similar case, 22d June 1642, Nisbet against Williamson, No 23. p. 2774. voce Competition.
