The obligant, in a bond of presentation, was allowed a new day to present the debtor.
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A man being taken by letters of caption, and his friends, before he was put in ward, interceding with the party, obtain favour to demit him upon the intercessors bond, either to put him again to the party cum omni causa betwixt and a certain day; or, failing thereof, to pay the sum due by the rebel, after the expiring of the day: The rebel not being presented, the party pursues for the sum. The intercessor offers yet to produce to the party the rebel cum omni causa.——The Lords grant him a new day.
Fol. Dic. v. 1. p. 114. Auchinleck, MS. (Capiton.) p. 22.*** The same case is reported by Durie:
January 23. 1629.
A Debtor being taken by letters of caption, and ready to be incarcerate, another gives his bond to the creditor to re-enter him, betwixt and a certain day, in all good estate to be incarcerate then, or else to pay the sum; whereupon the debtor being liberate, thereafter the said debtor, after the giving of the foresaid bond, and before the day appointed therein for the re-entry, obtains suspension of the charges for that debt, for the which caption was used; after the expiring of the day of re-entry, the person bound for the failzie of not-entry, conform to his bond, being charged to pay the sum, and he suspending upon an offer yet to re-enter him in as good estate as he was in at that day, wherein he was bound to re-enter him; this after was sustained, and admitted to purge the failzie, albeit it was long after the day in the bond. And thereafter the creditor alleging, That he was not in all good estate as he was in when he was relieved from warding upon the said bond, because, since that time he had obtained a suspension, which was an impediment that the creditor could not incarcerate him; this allegeance was repelled, and the debtor's obtaining of suspension was not found a cause, whereby the debtor could be repute in a worse estate, seeing caution was found in the suspension, against whom the creditor would obtain execution, if the suspension should discuss in his favour. But it would appear that this should not have liberate the person bound to enter the debtor; for, if the cautioner in the suspension was not answerable to pay the debt, the creditor would be prejudged, who would not find the debtor so easily to be apprehended, and put again in ward; so that it might seem reasonable, that if the suspension should discuss in favour of the creditor, that he who was bound to enter him, should be holden to enter him, eo casu to the creditor to be warded.
Clerk, Hay.
Fol. Dic. v. 1. p. 114. Durie, p. 417.
