Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Mary Stirling, and Poltoun, her Spouse,
v.
Bailie Justice

Date: 20 November 1669

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In an exhibition, pursued at the instance of the said Mary, and her husband for his interest, against Bailie Justice, of a principal bond which he had in his custody, as tutor to the said Mary's son; the said Bailie did produce an extract out of the register: It being alleged, That the principal ought to be produced and taken out of the register; because it was put there after the death of the principal debtor, whose estate was to be comprised for this debt; and so could not work against him, but only against the cautioner, who was then alive; especially seeing the defender had registered the same after intenting of the exhibition, and so did it dolo malo.

The Lords did, notwithstanding, assoilyie the defender, and found, That in this or the like cases, where bonds are registered against any one party who was living, it ought to exoner the tutor from exhibition; and the liferenter or curators of a minor, succeeding to the tutor, ought to pursue a registration against the heirs of the principal debtor, or any other cautioners who were then living the time of the registration.

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