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Scottish Court of Session Decisions >>
Anderson of Linkwood v Innes of Dunkinty. [1756] Mor 7068 (27 July 1756)
URL: http://www.bailii.org/scot/cases/ScotCS/1756/Mor1707068-008.html Cite as:
[1756] Mor 7068
A bond of corroboration to a son, of a debt due to his father, is a good foundation for an adjudication, tho' the original bond be not produced.
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James Fraser granted to John Innes, younger of Dunkinty, a bond of corrobration for L. 500 Scots, of date 11th September 1733, in the following terms:
“Forasmuch as I was justly owing George Innes of Dunkinty by bond, the sum of 1000 merks Scots money, which was assigned by him to John Innes younger of Dunkinty, his son; and whereupon he raised diligence, by horning, inhibition, and caption, for the said principal sum, penalty, and annualrents contained in the said bond, in manner at more length specified in the said diligence; and seeing, after just count and reckoning betwixt the said John Innes and me, of this date, anent the said bond, and other bills and writs, that I was due to the said John Innes, or George Innes his father, conform to a doqueted account apart, I am justly resting and owing to the said John Innes the sum of L. 500 Scots, as the balance of the said bond, and other accounts at the term of Lammas last bypast; and that he has superseded the payment thereof to the term of payment underwritten, upon my granting the bond of corroboration underwritten: Therefore,”
&c. Upon this bond of corroboration John Innes adjudged the estate of James Fraser, and made his adjudication effectual by a charge against the superior.
In a ranking of James Fraser's Creditors, it was objected against this adjudication, That John Innes the adjudger had no right to the original bond of 1000 merks, said to be assigned to him by his father, because no such assignation is produced; and therefore, that the corroboration and consequent adjudications are null, as having no proper cause or just foundation.—It was answered, 1mo, That the bond of corroboration recites the assignation; and that this acknowledgment by James Fraser the debtor, while his credit was entire, is good evidence against him, and consequently against his creditors, the posterior creditors especially. 2do, Supposing there never had been an assignation, a corroboration to a son, of a debt due to the father, is notwithstanding an effectual deed. The debtor is bound by his bond of corroboration, and all he can demand is, that, upon payment, the son warrant him against the father.
