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Patrick Leslie, and several cautioners, granted bond to Sir James Stewart, who assigned the same to John Denholme, who used execution, in his cedent's name, and took some of the debtors with caption, and being in the messenger's hands, this John Ogilvie assisted to the making of their escape, and thereupon being incarcerated by the Magistrates of Edinburgh, (which concourse of their authority, by their officers, as use is, in executing captions within Edinburgh,) by agreement the said John Ogilvie paid £800 to be free, and thereupon obtained assignation from Sir James Stewart, to as much of the bond, with warrandice from Sir James' own deed, and excepting from the warrandice, an assignation formerly made by Sir James, to John Denholme. John Ogilvie having pursued one of the debtors, he was assoilzied, upon a discharge granted by Sir James Stewart and John Denholme, and them both with one consent; whereupon John Ogilvie charged Sir James upon the clause of warrandice; who suspended, and alleged, that the foresaid discharge was nothing contrary to his obligation of warrandice; because, in the warrandice, John Denholme's assignation was excepted, and consequently all deeds done by John, as assignee. Ita est, this discharge was granted by John Denholme, and would be valid, by John Denholme's subscription; and there was no prejudice done to this pursuer, by Sir James Stuart's subscription, seeing without it, the discharge would exclude him. The charger answered, that John Denholme subscribed but as consenter, and was not mentioned in the discharge as assignee. The suspender answered; that the discharge being with his consent, was as effectual, as if he had been principal party, and each of them discharged with others consent.
The Lords found the reason of the suspension relevant.
