A debtor who had raised reduction of his bond on minority and lesion, was held as confessed de calumniæ. This found not to bar his cautioner from insisting in the action.
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Henry Fairbairn being warded in the tolbooth of the Canongate for not payment of a sum owing to Bartholomew Kello, contained in his bond, and escaping out of ward, and sentence recovered against the Bailie thereupon for payment of the debt; thereafter the bond is desired to be reduced by Fairbairn, upon a reason of his minority; and the creditor having summoned the pursuer, he being out of the country, to give his oath de calumma upon the reason, with certification; and this reduction being desired to-be transferred in the cautioner for the jailor, who was decerned to relieve the Bailies; it was found that it ought to be transferred, and that the cautioner might insist thereon, even as a cautioner might transfer a suspension, though the principal would not insist thereon, who raised the same, or as a singular successor might seek transferring of that which was competent to his predecessor; and albeit the raiser of the reduction were holden as confessed, upon his oath de calumnia, as would grant the defender's desire by his compearing, yet that ought not to prejudge the cautioner to insist and prove the reason.
Act. M'Gill.Alt. Nairn.
Fol. Dic. v. 2. p. 351. Durie, p. 416.
