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.

Innes
v.
Gordon

Date: 3 February 1635

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In a special declarator, pursued by one Innes, donator to the escheat of N. against Gordon, who was addebted by bond, to the rebel, in 500 merks;—Alleged by Gordon, Absolvitor; because he had paid, as cautioner for the rebel, as great a sum, and so should retain the same for his relief. Replied, Good against the rebel, but not against the king nor his donator, who will not be liable to pay the rebel's debt, except that whereupon the horning proceeds. Duplied, As he might compense against the rebel, even so against the donator; for, he having his relief still in his own hand, it is as good to him as if the rebel had given him as much out of his hand, which he might have lawfully taken, notwithstanding that he was at the horn; neither could ever the donator have repetition of it. The Lords found the exception relevant, and sustained the compensation.

Page 107.