Scottish Court of Session Decisions

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

Mr Walter Bruce, Minister,
v.
Menzies of Rotmell

1670. June —.

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Alexander Menzies of Rotmell being obliged, by contract of marriage, to pay the sum of 2500 merks, in name of tocher, with his daughter, to the said Mr Walter; long thereafter he did provide the fee of his estate to his eldest son Robert, by his contract of marriage; at which time the said Robert gave bond, wherein he was obliged, that, in case his father should be distressed for any debt prior to his contract, in that case he should become cautioner for him to the creditor; or otherwise, if they should borrow money for payment of the debt, that he should be obliged as cautioner for the same: upon which bond, Mr Walter having pursued Robert for payment of his tocher;—

It was alleged, That, by the conception of the bond, he was only to grant new security, as cautioner for his father; which never having been done in his father's time, who should have been principal, and of whom he might have gotten relief, the bond, whereupon the libel was founded, was not obligatory.

The Lords, notwithstanding, did sustain the pursuit upon the bond; especially it being instructed, by letters of horning produced, that the father was distressed in his own lifetime; which was sufficient to make the son liable according to the tenor of the bond: Seeing, if the son had been pursued during the lifetime of the father, he would have been necessitated to grant bond as cautioner; albeit the father had refused to grant a new bond; and the death of the father could not alter the case.

Page 111.