A suspension was brought because the charger had not implemented his part of a contract. At discussing, he did implement, and the letters consequently were found orderly proceeded. Yet the cautioner was not liable.
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John Weir having charged John Symington of that ilk, for payment of 600 merks, conform to his bond; he suspended, and found James Bailie, brother to the Laird of Lamington, cautioner in the suspension. The reason was this, that the bond was given for a renunciation of a wadset, which should have been given by the charger to the suspender for it; but so it was, that he had never received the said renunciation. For purging of the reason, the charger produced the renunciation, and therefore craved the letters might be found orderly proceeded, which was done against the suspender. After this, the cautioner in the suspension alleged, That howsoever the charger did now produce his renunciation, that should not burden him, but he ought to be free of his cautionry, since the suspender had reason to suspend, the charger not having performed his part the time of the raising of the suspension; and the renunciation being now produced, the suspender can only be burdened with it, but not the cautioner. Answered, The cautioner must be liable to all that the suspender is, seeing he became caution for that effect, to fulfil whatever the Lords should think the suspender bound to perform, and not that the reason was true and relevant. The Lords did suspend the letters simpliciter against the cautioner, and found that he ought not to be burdened with the debt, for the reason foresaid.
