Scottish Court of Session Decisions

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

Henry Graham
v.
Alexander Simpson

Date: 12 July 1676

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There being a decreet of suspension obtained, at Mr Andrew Oswald's instance, against William Graham of Hiltoun; in which suspension Alexander Simpson was cautioner for Hiltoun, and thereupon being denounced, and under caption, did make payment to the said Mr Andrew Oswald; and having gotten an assignation, caused comprise Hiltoun's estate for his relief. Henry Graham, having comprised the same lands from Robert Graham to whom William Graham of Hiltoun had disponed the said lands; but, after the said decreet, there was a reduction raised of the decreet at Graham's instance, upon these reasons;—That the decreet was most unjustly taken out, the reasons of suspension being most relevant, viz. that the bond wherein Graham was bound with the Laird of Polmais, Cardin, and others, was for a public debt, due by the shire of Stirling, for their outreik of soldiers in the year 1640; and so the shires could only be burdened; and the subscribers of the bond were free by Act of Parliament. 2d. Mr Andrew's right to the bond was only as executor; whereas the bond was dated in the year 1640, before the Act of Parliament 1641; and, bearing annualrent, it belonged to the heir. 3d. Simpson needed not have paid Mr Andrew Oswald; because there was a new suspension obtained against him of that decreet, and, at the passing of the bill, Simpson was desired to be cautioner; which was an intimation, and, he refusing, it was his own fault that he made payment.

It was answered for Simpson, That these reasons could not militate against him, whatsoever they might import against Mr Andrew Oswald; for he, being a cautioner for Graham of Hiltoun, against whom the decreet was gotten, and being under horning and caption before he made payment, he ought, in justice and reason, to have his relief of the principal; and was not obliged to debate whether the decreet was justly given or not: and, unless there had been a suspension raised of that decreet, and intimated to him before payment, he was in bona fide to free himself from horning and prison, by obeying of the decreet: and his refusing to be cautioner in a new suspension cannot prejudge him; he being under horning and caption, and so not able to be cautioner, and in effect being the principal party.

The Lords did assoilyie from the reduction and suspension; and found, That a cautioner in a suspension being distressed, making payment, may seek his relief of the principal, notwithstanding that he might have just grounds to reduce the decreet; he not being obliged to debate the same with the principal for whom he was distressed: As likewise, they found, That the desiring him to be cautioner in a new bill of suspension, which he refused, as being under caption and horning, could not prejudge him as being a sufficient intimation; and that it was necessary, for putting him in mala fide, that the principal should have obtained a new suspension both for himself and his cautioners, and had procured another to be cautioner in the new suspension, and, after passing thereof should have intimated the same to Alexander Simpson before payment.

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