Scottish Court of Session Decisions

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

John Daikle, English Merchant,
v.
David Home

Date: 19 February 1675

Click here to view a pdf copy of this documet : PDF Copy

The said David, being cautioner in a bond for the deceased Earl of Home, to the said John Daikle, which bond was made and subscribed at London; being charged to make payment, did suspend upon this reason, That the principal, the Earl of Home, dying in prison, by the law of England it did liberate his cautioner.

It was answered, that, notwithstanding of that reason, the letters were found orderly proceeded. 2d. That there is no such law or custom in England. 3d. The bond being granted by Scotchmen, ought to have execution here, according to the law of Scotland, where the death of the principal doth not liberate the cautioners; and, even in England, that cannot be alleged but where the principal was at first incarcerated for that debt.

It was replied, that the letters were found orderly proceeded in the first suspension, because there was no reason then libelled but that the Earl died in prison; whereas the contrary was notourly known; and, by an ordinance of the Lords, upon consignation of a special sum, there was liberty granted to suspend de novo, upon this reason, that the principal was prisoner, and let out upon a guard, under which he died, and his corpse carried back to the prison to liberate the keeper; which, by the law of England, did liberate the cautioner.

The Lords, before answer, did grant commission to try the law and custom of England in this last case, by a report of some of the judges of the common law.

Page 462.