Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Robert Watson
v.
Lord Kellie

Date: 27 January 1685

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Sir John Kirk, being cautioner for my Lord Kellie for £10,000, bearing annual-rent, got a separate bond of relief, and being distressed, gave a bond of corroboration to the creditor: Robert Watson, donator to Sir John Kirk's single escheat, pursued a special declarator against my Lord Kellie's heirs. Alleged for the defender, That the bond of relief fell not under the single escheat, seeing it ought to be considered of the nature of the principal bond, which was heritable quoad fiscum, by bearing annual-rent; 2. Distress, without actual payment by the cautioner, is not sufficient to make the sums of relief to fall to the donator of his single escheat in causa pene infavorabili, though a simple distress, quoad some favourable effects, be sufficient to make him creditor. Answered, The bond of relief is moveable, seeing it contains no obligement to pay annual-rent formally; and the obligement of relief among cautioners in an heritable bond, is moveable, and, after distress, falls under executry and escheat, &c.; 2. The not actual payment doth not alter the case; for, upon distress, there is obligatio pura et actio nata, which falls in escheat as other moveable bonds. The Lords found the obligement of relief did not fall under escheat, unless the rebel had paid the debt; which defence was sustained at the debtor's instance, neither cautioner nor creditor competing. This decision seems irregular.—Castlehill's Pratt, tit. Escheat, No. 65.

Page 115, No. 433.