Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

Margaret Edgar and Walter Cant
v.
Edward Edgar's Bairns and their Tutors

Date: 10 July 1628

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Mr William Maxwell of Ravens, being addebted in the sum of £6000 to divers creditors, as principal, and with him Walter Sinclair and Edward Edgar as cautioners: The cautioners being distressed, and having paid the sums for him, Edward Edgar makes David Johnston assignee to the bond of relief given to him as cautioner by Ravens; whereupon David comprised the lands of Ravens. Edward Edgar being dead, his relict Margaret Edgar, and Walter Cant her husband, pursued for a third of the moveables pertaining to her umquhile husband, and, among the rest, for a third of the sums comprised for, by virtue of the assignation foresaid; or else to be assigned to the third part of the comprising, after it was found that the assignation which was made by Edward Edgar upon his death-bed, was null, in so far as it could prejudge his relict. It was further alleged by the tutors to Edward's bairns, who were convened, That she could crave no part of these sums, because they were not moveable, but heritable, in so far as the bonds owing by Ravens and his cautioners were heritable; and the bond of relief given by Ravens to his cautioners behoved to be of the same nature with the principal bond; so that the relief was competent to the cautioner's heirs only, and not to his executors; and consequently the relict could have no third of it. This matter was much agitated among the Lords, whether the money being paid by the defunct, Edward Edgar, in his own time, the relief, conform to the bond, should be competent to his heirs or executors: Many inconveniences were represented on both sides, yet at last it was found competent to the executors.

The like was found betwixt Mr John Hart and Patrick Hart, his brother, 18th March 1630.

Page 65.