Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.

Sir Robert Gordon of Gordonston
v.
Mary Stewart, Relict of Commissary Wood

1694. January 3 and February 7.

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Halton reported a bill of suspension presented by Commissary Wood's relict against Sir Robert Gordon of Gordonston, and Major James Wood, cautioner in a former suspension, wherein she offered to pay the debt, providing the charger would assign her to Major Wood's bond of cautionry; which Sir Robert refused. As also, compearance is made for the Major, who alleged they could not recur against him, because her husband had not only given a new bond, after his becoming cautioner for him, but also she herself had granted a bond of corroboration, since her widowity, for the debt, without any relation to the Major's cautionry, or any clause, that, on payment, they shall be assigned to all the security that was already taken for the debt. And the question was, Whether it accresced. For, in the case of more suspensions, it was thought, that the cautioner in the first suspension would be bound to relieve the cautioner in the second; and he behoved to be first discussed; and the second was only subsidiarte liable, and it is likely would not have engaged, had not he seen that sufficient caution was found before. But it was urged, That the granting of a bond of corroboration differed from a cautioner in a second suspension, seeing he became principal correus, and had relief only against the debtor, and not against his cautioner. And it was asked, if the cautioner might not have given a gratuitous discharge, to Major Wood, of his cautionry; and it was yielded he might, any time before taking the bond of corroboration; but, after that, it was contended there was a jus quœsitum to the new obligant, which the creditor could not prejudge.

The Lords thought the point of moment, Whether or not all the accessory securities formerly given for the debt accresced to those who afterwards became bound for it, though not expressed. They waved the decision, but allowed the suspension to pass, if the charger would not consent to discuss summarily: for it appeared very unfavourable on the relict's part, seeing she was intromitter with her husband's goods, and so bound to relieve the Major, his cautioner, on whom she was seeking to turn over the debt. But that was in causa; whereas the present question was, If they should pass the bill.

Vol. I. Page 587.

February 7.—The Lords decided the charge at Sir Robert Gordon of Gordonston's instance, against Mary Stewart, relict of Commissary Wood, in Caithness, on Halton's report; and found, Gordonston was not bound to assign her to Major Wood's bond of cautionry for her husband in the first suspension, seeing the bond of corroboration she had given to Gordonston, since her husband's death, was not relative to that bond of cautionry, nor an accessory security thereto, in contemplation whereof she had engaged. Some urged, that Gordonston had componed with Major Wood, and the charge was for Wood's behoof; and so, though it was not competent against Gordonston, yet it might meet Major Wood. But the Lords decided ut supra.

Vol. I. Page 604.