A charge having been liable to an objection when given, although it afterwards came to be valid, the cautioner, and consequently his attester, against whom an action was brought, were found not liable.
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Mr Robert Colt advocate, having intented a declarator against Mr William Somervell, to hear and see it found and declared, that he being an attester of a cautioner in a suspension, raised at the instance of one Menzies, against Mr William, of a charge of horning for payment making of 2000 merks, due by the said Menzies to the said Mr William, that he ought to be free, in regard the reasons of suspension were relevant and true, and particularly that reason, that the charge was at Mr William's instance, after he was sentenced by a sentence of the Justice Court to die, and that the sum being made moveable, fell under. escheat, albeit ex post factor, he had gotten a remission. The Lords found, that the charge was null, being at the instance of a condemned person, and the reason of suspension (exclusive of the charger's title, the same falling under escheat) was relevant to exoner the attester and cautioner; albeit that now the time of this declarator, he had gotten a remission, the remission being in effect a new title acquired from the King, which was not in his person the time of the charge, or raising the suspension; but the Lords were of the opinion, that no reasons of suspension that were suspensive of the debt only, such as arrestments and the like, would exoner the cautioner, unless they were either exclusive of the debtor or the title. See Quod ab initio vitiosum.
Fol. Dic. v. 1. p. 128. Pres. Falconer, No 37. p. 20.*** Sir P. Home reports the same case:
Mr William Somervell having pursued Mr Robert Colt advocate, for payment of a debt, as he who had attested William Menzies of Raw, cautioner in a suspension; alleged for the defender, That the reason of suspension being found relevant, must liberate the cautioner and the attester, albeit the reason was thereafter elided by an answer for the party; having suspended upon relevant reasons, the cautioner and attester are not farther liable; just as in the case when a decreet is turned into a libel, the cautioner and attester are free; as this is clear in general, so much more in this particular case; the charge of horning being given to the principal party at the pursuer's instance, after sentence of death was pronounced against him for a slaughter committed by him; after which sentence, the pursuer being civiliter mortuus, the charge of horning, given at his instance, was ipso jure null. Answered, That albeit the reason of suspension be relevant, yet the reason being elided by an answer, and the letters found orderly proceeded against the suspender, the cautioner and attester must be liable in consequence; they, by the tenor of the bond of caution, being obliged to pay the debt, in case it shall be found, that the suspender ought so to do; and it is not a like case, when a decreet is turned into a libel, because it is then no more a sentence or decreet, but only an action; and therefore, the cautioner and attester are not farther liable, albeit the principal party be found liable for the debt, because in that case, there is no decreet of suspension, nor the letters found orderly proceeded, but only a decreet, as an ordinary action, which has only effect against the principal party, but not against the cautioner and attester, who, by turning the decreet into a libel, it being funditus taken away, they are absolutely loosed, and no farther liable. And albeit the pursuer was under the sentence of death, the time of the giving of the charge of horning, and so repute to be civiliter mortuus, yet that cannot liberate the cautioner and attester, who by their bond became civilly and naturally bound to pay the debt in case the same should be found due; especially the pursuer having obtained a remission of the crime for which he was condemned, and so is in the same case as to all effects, as if he had not been sentenced; and, if the defender had granted a bond of borrowed money to the pursuer at that time, it would have obliged them. By that same reason, this bond of cautionry and attestation should oblige them; and if the pursuer's estate had been gifted as the defenders, would have been liable to the donatar, notwithstanding the charge of horning was given after sentence of death was pronounced against the pursuer, by that same reason, they ought to be liable to him, being now restored and having obtained a remission.——The Lords found, that the pursuer being under the sentence of death when the charge of horning was given, the charge of horning was null; and found the reasons of suspension exclusive of the charger's title, and seeing the same came unde Mr William Somervell's escheat, it was relevant to absolve the attester and cautioner, albeit that now the time of the declarator Mr William Somervell had gotten a remission, which being in effect a new title acquired from the King, and not being in his person the time of the charge, and raising of the suspension, whereof he had no right to the sum. But the Lords were of opinion, That no reason of suspension that was suspensive of the debt only, such as arrestment and the like, could exoner the cautioner, but only such reason of suspension as did either extinguish the debt, or was exclusive of the debtor's title; and therefore assoilzied the defender.
