Scottish Court of Session Decisions

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

The Earl of Kinghorn
v.
The Earl of Winton and Marshal

Date: 14 February 1673

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The Earl of Errol, having sold to the Earl of Marshal the lands of Reidcleuch, whereof George Mowat was tenant, from whom the Earl of Errol had borrowed the sum of 2000 merks, and given bonds for it as principal, and the Earl of Kinghorn being then his tutor, as cautioner for him; they, by the contract of alienation, did take the Earl of Marshal as principal, and the Earl of Winton as cautioner for him, obliged to relieve them of the said bond: notwithstanding whereof, Kinghorn, being pursued at the instance of the relict of Sir George Mowat, as having right, by progress, to the said bond, was decerned and forced to make payment. Whereupon, having intented action against the Earl of Winton for repayment of the said sum, upon the foresaid bond of relief;—

It was alleged for the Earl of Winton,—That Kinghorn could not pursue upon the bond of relief, because he did not intimate his distress, which, if he had done, the defender would have furnished him with an unanswerable defence, viz.—That George Mowat, to whom the bond was granted, was debtor in as much to the Earl of Marshal, in so far as, after the right made to him of the said lands of Redcleuch, he possessed the same so many years as would amount to more than the sums contained in the bond.

It was replied, That the defence, resolving in a compensation, could not be admitted; because it was not liquid by a decreet, neither was it inter easdem personas, he being only debtor by his possession to the Earl of Marshal or the Earl of Errol, but noways to the Earl of Kinghorn, who did pursue upon his bond of relief.

The Lords, in respect that Kinghorn had not intimated to them his distress, found, That the Earl of Winton ought not to be prejudged, if he had any just ground which would have freed him from payment; and therefore did assign a long day to the Earl of Winton to pursue and obtain decreet against George Mowat or his representatives, who, being made liable for the payment of the duties of the lands during his intromission, might refund the money which Kinghorn had paid, or free both Kinghorn and Winton, at the hands of the Earl of Errol, from whom it was alleged that Mowat had a tack of the said lands, which did endure, after the sale thereof, to the Earl of Marshall, and was not excepted out of his right; whereby the Earl of Errol might have compensed Mowat upon the tack-duty; which being founded upon writ, as it was competent against Mowat, the cedent, so it was competent against the assignee.

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