Scottish Court of Session Decisions

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

George Logan of Burncastle
v.
Mr William Kintore, Advocate

Date: 20 December 1672

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In an action, pursued at George Logan's instance, against Mr William, for payment of 2000 merks, it was alleged for the defender, That he ought to have compensation for the like sum, in so far as he had right to a bond, wherein the pursuer's goodsire was cautioner; for instructing whereof, he produced a decreet of registration, obtained before the Sheriff of Edinburgh.

It was replied, That the decreet being given against the principal, who was only called in that process, it cannot verify the debt against the pursuer, as representing his goodsire, who was not called, unless the principal bond were produced; seeing, as to the alleged cautioner, it was res inter alios acta; and the decreet being but the assertion of the clerk, cannot verify a debt more than an extract of a registrate bond after the death of the granter, or of a transumpt to make faith against a party not cited to compear.

It was duplied, The decreet of registration of a bond, whereof the principal was given in to be the warrant of the decreet, must be sufficient to verify the debt against the cautioner, unless there were an improbation of the principal bond depending.

The Lords did repel the defence of compensation, founded as said is; and found, That, unless the cautioner or his representatives had been called in the action of registration, as well as the heirs of the principal, the decreet of registration could be no ground of a pursuit against them; especially seeing there had never been any action intented against the cautioner or his representatives for the space of fifty years.

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