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Scottish Court of Session Decisions >>
Menzies of Castlehill v Douglas of Cashogill. [1631] Mor 5537 (20 December 1631)
URL: http://www.bailii.org/scot/cases/ScotCS/1631/Mor1305537-096.html Cite as:
[1631] Mor 5537
Subject_1 HERITABLE and MOVEABLE. Subject_2 SECT. XVII.
Adjudication upon Moveable Bonds.
Menzies of Castlehill v. Douglas of Cashogill
Date: 20 December 1631 Case No. No 96.
A cautioner having paid a debt, and comprised the principal debtor's lands; the comprising was found to make the sum heritable.
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The deceased ——— Menzies of Castlehill being cautioner for ——— Douglas of Cashogill, and for his relief of the sums paid by him as cautioner, comprising Cashogill's land; after the said cautioner's decease, his heir pursues the said principal for payment of this sum, and annualrent thereof, ay and while the re-payment, and of all years since his father's decease; and the defender alleging, that this relief pertained not to the heir of the cautioner, seeing it was sought, not by virtue of the comprising deduced by the cautioner in his lifetime, but by a personal pursuit, at the instance of the heir of the cautioner; which relief so sought was not proper to him, but pertained to the defunct's executors, who pursued not therefor;—the Lords repelled this allegeance, seeing they found this defender, who was debtor, could not competently propone the same, and the executor distressed him not; likeas the heir offered caution to warrant him at the executor's hands, which the Lords found sufficient.
Act. Burnet.Alt. ——.Clerk, Scot.
Fol. Dic. v. 1. p. 372. Durie, p. 611.*** Auchinleck reports the same case:
If the defunct, in his time, comprised lands for his relief, the same will pertain to his heirs, who must find caution to warrant at the executor's hands.
