Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Sir John Wilky of Foulden v. Sir James Carmichell and Others
Date: 8 November 1671
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Sir John Wilky of Foulden, pursues a declarator against Sir James Carmichell, Mr. Wm. Cheisley, William Brown, agent to the boroughs, and others, to hear and see it found and declared, That a bond granted by the said Sir John, as principal, and Sir James Carmichell, as cautioner, was void, null, and extinct, in so far as the same was satisfied and paid with the principal's own monies; and consequently, that the assignation taken by the said Sir James, in Mr. Wm. Cheisley's name, should operate and take no effect against him, the debt being paid in manner above expressed.
Against this it was alleged by Sir George Lockhart, That the bond can never be declared extinct, but the assignation taken thereto by the cautioner must stand good, in so far as the said bond was satisfied by the sole moyen and credit of the cautioner, who borrowed the money owing in the bond from Johnstone of Hiltoune; for which a bond was again granted by Foulden, as principal, and the said Sir James, (who was cautioner in the first bond) as cautioner; and so as to him it was just alike as if he had remained cautioner in the first bond.
Replied,—By the payment, the first bond was wholly taken away, and though money was borrowed for paying thereof, yet it must be reputed to have been satisfied by the principal, since he continued principal in the new bond, and liable to the cautioners by an express clause of relief.
The Lord Newbayth inclined to sustain the declarator; and thought the taking the assignation to the first bond, ad majorem cautelam, and for better recovering of his relief, unwarrantable.
Yet Sir George contended he might, since he continued still debtor for the sum by becoming cautioner in the second bond.
