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Scottish Court of Session Decisions >>
The Countess and Earl of Annandale, and Sir William Denholm of Westsheils, v David Baillie. [1697] 4 Brn 365 (19 February 1697)
URL: http://www.bailii.org/scot/cases/ScotCS/1697/Brn040365-0761.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Countess and Earl of Annandale, and Sir William Denholm of Westsheils, v. David Baillie
Date: 19 February 1697
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I reported the Countess and Earl of Annandale, and Sir William Denholm of Westsheils, their assignee, against David Baillie, chirurgeon apothecary in Edinburgh, upon his forfeiting a bond of presentation, whereby he had obliged himself to present Captain Bailie of Hardington, his nephew. The defence was, —Whatever is competent to Hardington is likewise so to me, 1 being only his adpromissor; and, ita est, he would crave the beneficium cedendarum actionum, in which case I would recur against you, Westshiels, who are bound as co-principal; and so confusione tollitur obligatio.
Answered,—Hardington could not crave an assignation; because his father, by a bond of relief, had declared the debt to be totally his own, and that Westsheils was merely a cautioner; and he, being his apparent heir, could not quarrel this.
Yet the Lords demurred, and thought he might insist for an assignation, unless they instructed that he some way represented his father.
