Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ROBERT MACGILL, LORD FOORD.

Rodger
v.
James Binning

Date: 29 June 1649

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In the suspension pursued by Rodger against James Binning, the reason was libelled, that, before payment, the said James should subscribe assignation against the cautioner his heirs, contained in the first bond, according to his promise; as also, according to a clause in the second bond, tying him to deliver both the bonds to the suspender the time of payment-making; which importeth assignation, or else the re-delivery was not much profitable. But the charger denied the same, being referred to his oath; for that, to free the poor minors, bairns to the deceased cautioner, was according to conscience. He discussed, first, the principal, and, if Rodger had not intervened by his posterior bond, he would have laid in ward his principal debtor, whom he had then in hands. Likeas, the Lords found that the foresaid words of the bond did not import assignation, and yet was profitable ut constaret de relato, sicut de referenti; and the said James, being paid, should keep neither of the bonds.

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