Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Sinclar v. Spotiswood
Date: 3 December 1662
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The case was, Peirsone having wadset his lands to Hamilton; and finding that the wadset-granter was inhibited before his right, by a lawful creditor; he transacts with the said creditor, and takes assignation to the bond, and haill diligences raised thereon; and then charges Duncan, who is cautioner for the debtor in the bond, to pay the debt: who, suspending that he was willing to pay the debt, the assignee giving him a right to the bond, and haill diligences used thereon, for his relief against the principal;
Answer,—He could not assign him to the inhibition, because it might then affect his own right of wadset made to him thereafter.
The Lords found he behoved to assign, or else to discharge the cautioner of the debt; and that the charger had a design to cheat the suspender of his right.
