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.

Menzies of Castlehill
v.
The Laird of Carshogill

Date: 16 December 1631

Click here to view a pdf copy of this documet : PDF Copy

Menzies of Castlehill, as heir to his father, pursued Carshogill, (for whom the pursuer's father, as cautioner, had paid 2000 merks,) upon a clause of relief contained in the bond, wherein the pursuer's father was cautioner for the defender. Alleged, The benefit of that clause of relief pertained not to the heir of the defunct, but to his executor; as was decided supra, (Edgar and Cant against Edgars and their Tutors, 1628, July 10.) Replied, He that was debtor could not allege that; but, if the executor were striving with the heir, he might do it. As for the defender, he was subject in payment, and could not found a reason upon another man's right; and, to free the defender of all danger, the pursuer offered to find caution to relieve him at the executor's hands, and all others. The Lords repelled the allegeance, in respect of the reply and offer of caution.

Page 69.