Scottish Court of Session Decisions

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

Sir Alexander M'Culloch
v.
George Mossman

Date: 22 January 1675

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Sir Alexander being charged, at Mossman's instance, to relieve him at the hands of William Lockhart, for the sum of £1000, he did suspend upon this reason,—That the charger was never distressed, neither could be distressed at this time, William Lockhart being dead, and no person representing him had any right established in their person, whereupon the charger could be pursued, or, upon payment, could grant a discharge to Mossman of his bond; so that it was factum imprestabile, and no damage or interest could be craved for not performance; which is all the law allows, seeing the charger hath never been distressed: likeas, the suspender offers to find caution sufficient to relieve him whensoever he shall be distressed.

It was answered, That the reason was nowise relevant; because the bond charged upon did expressly bear, that the charger, having given his bond to William Lockhart, creditor, at the desire of the suspender, to whom he was not obliged, therefore the suspender did oblige himself to relieve the charger at a certain day, which did long expire before Lockhart's decease, which was then factum prestabile; and the charger ought not to be in a worse condition, and lie under the hazard of that debt, through the fault of the suspender: neither ought he to accept of caution to relieve him when he is distressed, he not being in the case of a cautioner for a principal sum, who can only seek relief upon a distress; but, being solely debtor to Lockhart, at the desire of the suspender, his bond ought to be fulfilled in terminis, and he freed by a discharge of that debt.

The Lords did find, That the charger ought to be relieved without any distress, the suspender being bound, as said is; and that the charger was not obliged to accept of caution, whereby he might still lie under hazard; but did ordain the suspender to do exact diligence against the representatives of Lockhart, that they might receive payment, and grant a discharge of the debt betwixt and a certain day; and if then he did not procure a discharge, they decerned that the suspender should pay in to the charger as much money, to lie in his hands, as would relieve him, whensoever any representing Lockhart, to whom he was bound, should distress him for that debt: so that intus habens, he could pretend no danger or prejudice.

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