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Scottish Court of Session Decisions >>
James Birsbane v John Monteith. [1662] Mor 3588 (24 July 1662)
URL: http://www.bailii.org/scot/cases/ScotCS/1662/Mor0903588-047.html Cite as:
[1662] Mor 3588
A decree against a principal, is not sufficient discussion to come at the cautioner, there must be at least a registered horning.
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James Birsbane pursues John Monteith, as cautioner for John Birsbane, who was executor to the pursuer's father, for payment of the pursuer's legacy. The defender alleged no process, because the executor himself is not discussed, and the cautioner is only liable subsidiarie. The pursuer replied, There is a decreet obtained against the executor produced, are there was no further discussing requisite, because he is broken, and the pursuer is content to assign the debt to the cautioner. The defender answered, Non relevat, for a decreet is no sufficient discussing, but there must be registrate horning at least, albeit the executor had neither lands nor moveables to poind or apprise.
The Lords sustained the defence, and found the reply not relevant till the registrate horning were produced.
