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Scottish Court of Session Decisions >>
Carmichael v Stewart. [1697] Mor 4747 (8 January 1697)
URL: http://www.bailii.org/scot/cases/ScotCS/1697/Mor1104747-063.html Cite as:
[1697] Mor 4747
Cautioners not entitled to the benefit of the act 18, Parliament 1690.
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Whitehill reported Carmichael of Bonnington against Sir Thomas Stewart of Coltnes, for payment of L. 2000, and the bygone annualrents contained in his bond. Alleged, This was a debt wherein he was bound with Baillie of Hardington; and Sir Thomas being forfeited by the act recissory in 1690, he has abatement of all the annualrents during the time he stood forfeited. Answered, That act is only introduced in favours of principal debtors forfeited, but not of their cautioners, as Coltness is here; for the law considered, if the principal was not forfeited, then the cautioner had his recourse for relief against him quoad all these years. Replied, There is the same parity of reason for both, and Coltness would assign the creditor quoad these years annualrents to his relief competent against the principal; only Hardington the principal was here bankrupt and gone. The Lords found the cautioners were not in the case of the act of Parliament, and could not plead the benefit of it, though the case existed, that the cautioner now could have no effectual relief.
Fol. Dic. v. 1. p. 315. Fountainhall, v. 1. p. 752.
