Subject_1 DEBTOR AND CREDITOR. Subject_2 SECT. III.
A Creditor receiving payment from a Cautioner, must assign every separate security for the debt. By passing from his separate security he liberates the Cautioner.
Mr William Robertson v. Campbell of Kilpount
Date: 24 June 1677 Case No. No 37.
There was a clause in a wadset, that if the wadsetter should take possession, both principal and cautioner should be free of annualrent during his possession. The wadsetter, after being several years in possession, voluntarily quitted it, without any intimation made to the cautioner. The cautioner was found liable for annualrent in time coming, from the date of the process, but not for bygones.
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Mr Archibald Campbell being pursued at Robertson's instance, as cautioner in a contract of wadset for the Master of Gray for 50,000 merks, in case of requisition; in which wadset there was a clause, That if he should continue in possession of the lands, that the principal and cautioner should be free of annualrent;—the said Mr William having desisted to possess, and suffered the Laird of Philorth to enter to the possession, who had required a right of reversion, did pursue for the principal sum due by the requisition, and for five years annualrent that he had been out of possession.—It was alleged, That the pursuer having continued in possession after the requisition, and thereafter desisted without any decreet gotten against him at Philorth's instance, he could not pursue for payment.—It was replied, That by the foresaid clause of wadset, it was in the pursuer's option to possess or not possess as he pleased, so that he might desist and seek the annualrent of his money.——The Lords did sustain the pursuit for the principal sum and annualrent in time coming, the pursuer denuding himself of the right of wadset in favour of the defender, who was only cautioner. But as to the years that he had suffered Philorth to possess, the defender was assoilzied, seeing he had never used an order of redemption, but had possessed by the pursuer's tolerance or right.
