A cautioner, against whom sentence had past, and who had thereupon paid, was found to have no relief against the principal, because the principal, who had a good plea, was not called, nor the distress intimated to him.
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The deceast Lord Herreis being bound as cautioner for umquhile Lo. Maxwel in anno 1587, that he should depart out of the country, and not to return without the King's license, under the pain of 5000 merks; the said Lord Herreis is convened before the King, being then present, and before the Lords of Secret Council, to hear him decerned to pay the sum, because the principal had contravened, by returning without license; whereupon decreet being given, and he charged to pay, thereafter he made payment, and reported the thesaurer's discharge; and the donatar to the Lo. Herreis escheat, after declarator thereon, assigning and disponing his right of relief against the Lo. Maxwel, and also the right of a sum of other 5000 merks, falling under the same escheat, which was conditioned to be paid to that same Lord Herreis, by the Lord Maxwel, in name of tocher to —— Maxwel of Grubton, who pursues this Earl as heir to the person obliged to the Lord Herreis's rebel, both for the penalty paid, and whereof the Lo. Maxwel was obliged to relieve him, and also for the tocher-good: The parties compearing and defending, the Lords found, that the pursuer, as having right by progress ut supra, nor the Lo. Herries himself, if he were pursuing, and living, could not seek this relief, notwithstanding of the sentence foresaid by the King and Secret Council, and albeit he had paid conform to the sentence, and albeit he had been charged before he had paid, because the principal party, viz. the Lo. Maxwell, who was alleged to have contravened and come against his bond, and thereby to have incurred the penalty, was not called to that sentence of the Secret Council, but the cautioner only, against whom that fact of contravening ought most properly to have been tried; neither did the cautioner, who was convened, decerned, and distressed, ever intimate to the principal that pursuit, or sentence, or charge given to him, at any time before his alleged payment of the sum, as he ought to have done, and which, if he had done, the principal now proponed a defence, which was then competent before the payment made by his cautioner, which would have relieved both principal and cautioner, viz. Compensation of a greater debt owing by the King's Majesty, and which was confessed by the King, in presence of the Lords of Secret Council also, and there acknowledged to be true, and done before the alleged payment made by the Lo. Herries as cautioner; in respect whereof the Lords assoilzied from the pursuit, and found the cautioner, for omitting the intimation of the said distress before his payment, could not seek relief against his principal, who was not cited to that pursuit, and who had the foresaid defence to liberate himself and his cautioner, if that had been notified to him; and as for the other part of the summons, anent the tocher-good, the Lords found this exception relevant, viz. That it was subscribed by the Lo. Maxwel, being then minor, and having curators, without their consents; neither was it respected what the pursuer replied, that albeit he was minor, yet the obligement was good, being done in a contract of marriage with, his sister, and upon that condition of tocher the marriage followed, and was perfected, and bairns procreate betwixt them now living, and the sister renounced all bairns part of gear competent to her therefor; so that, after 40 or 45 years since the contract, it was not time now to allege this nullity, the sister having discharged more than she received, and which could not now be conveniently tried, all the parties being dead, so that the probation of that which was due for her bairns part of gear discharged, by her is now perished; notwithstanding whereof the nullity was sustained; for frater non tenetur dotare sarorem L. (Cum plures) 12. § (Cum Tutor.) 3 ff. De administrat. & periculo Tutorum. tit. 7.lib. 26. et ibi Glossa, sed Bartolus contra; the rather this was done, because the parties were married a year or more before the contract, and the Lords reponed also the sister to that discharge, given of her bairns part of gear contained in the contract done, in respect of the condition of the tocher, which was found null, as said is. See Minor.
Act. Stuart et Dunlop.Alt. Nicolson et Cunninghome.Clerk, Scot.
Fol. Dic. v. 1. p. 127. Durie, p. 660.
