Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
The Town of Dundee v. The Earl of Finlater
Date: 22 June 1672
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At this time I got account of an action pursued lately by the town of Dundy, against the Earl of Finlater. The case was, the town having suffered a prisoner to escape, and being convened to pay the debt, there is decreet given against them in foro contradictorio; whereupon they capitulate with the creditor, and pay him upon this condition, that he pursue the Earl of Finlater as oy and heir to the deceased Earl of Finlater, who was cautioner in the bond; which he condescends to.
It was allegedfor Finlater, that he offered him to prove, by the pursuer's oath, that this pursuit was to the behoof of the town of Dundie. Which being granted by him, then he alleged that there could be no process at the town's instance against him, who was only the oy and heir of a cautioner, because what they had paid it was in pænam delicti, whereof they could have no repetition save off the principal debtor, whom they suffered to escape furth of their prison. Quod a quoquam pænæ nomine exactum est, id eidem restituere nemo cogitur; pænæ depensæ repeti non solent; l. 46 D. de regulis juris. That they are now come in place of the debtor, who could never have pursued him, ergo, neither can the town. Vide etiam l. 203 D. de R. Juris.
They say that the Lords assoilyied him from the pursuit. I think it was very hard measure.
