An apprising found null because led, not by the creditor, but by the cautioner upon his bond of relief, before he was either distressed or had made payment.
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John Peter of Whitsleid as principal, and John Bonar as cautioner, having granted bond to Mr John Aitchison for 2000 merks, as also John Peter being due to John Bonar other 500 merks, upon which John Bonar is infeft in an yearly annualrent out of a tenement of land in Edinburgh; and he having obtained a decreet of poinding of the ground for four year's annualrent, upon which he apprised the tenement; and George Dickson, as having right by progress to an adjudication of the same tenement, pursues a reduction and improbation against James Govan and Alexander Mylne, as heir to John Bonar, of the foresaid apprising; and the terms being run, and the pursuer having craved certification, contra non producta; alleged for the defenders, That they had produced sufficiently to exclude the pursuer's title, the apprising being prior to the pursuer's adjudication, and so there could be no certification contra non producta. Answered, That the decreet of poinding of the ground, whereupon the apprising proceeded, was only in absence, and is intrinsically null; for the bond being only a bond of relief, as to the 2000 merks, there could have been no decreet of poinding of the ground as to the annualrent of that sum, unless John Bonar had been distrest, and had actually made payment of the annualrent to Aitchison the creditor; and albeit he might have taken a decreet, and apprised for the 500 merks that was due to himself, yet he could not have taken a decreet for relief of the annualrent of the 2000 merks; so that the apprising is null, as being led for the annualrent of greater sums than was due at the time by the principal debtor to John Bonar; for John Peter, the principal debtor, neither was, nor could be debtor in the 2000 merks to John Bonar the cautioner, until he ceased to be debtor to Aitchison the creditor, which could not be unless Bonar had made actual payment, and either had obtained a discharge, or assignation to the debt: And the reason is evident, for, if Bonar the cautioner might have affected John Peter's estate, and uplifted the rent thereof before he made payment to Aitchison the creditor, then Peter the principal would have been liable in double payment; once to his cautioner who had affected his estate and paid himself by intromitting with the rents; and again to Aitchison the creditor when pursued by him; and even in so far as concerns the four years annualrent of the 500 merks, the infeftment of annualrent can only affect the tenement, but not the apprising, which is intrinsically null; and John Bonar was much more than satisfied and paid, not only of the annualrent of the 500 merks, but likeways of the principal sum, having possest the tenement since the year 1653, which paid 400 merks yearly; and, upon these grounds, he had raised a reduction of the apprising, which he now repeated. Replied, That the defender having produced a right which did exclude the pursuers' title, they were not obliged to debate the validity of that right before the production was closed, and avisandum made, and the cause came to be called by the course of the roll; and the bond for relief of Bonar the cautioner was not a simple bond of relief, but did bear an obligement, for the cautioner's relief, and more sure payment of the sum, to infeft him in an yearly annualrent effeiring to the said whole sum of 2500 merks. Duplied, That where the defender, in a reduction and improbation, makes a production, and alleges, that he has produced sufficiently to exclude the pursuer's title, it is then competent to the pursuer to repeal his reduction and grounds of nullity against that right, by which the defender would exclude the pursuer's title. But if the defender will pass from the defence, that his right excludes the pursuer's title, and allow certification to be granted contra non producta, the pursuer shall not make use of his reduction before there be an avizandum made with the writs produced, and the cause come to be called by the course of the roll. And albeit the bond, upon which the decreet of adjudication proceeded, is not only a simple bond of relief, but likeways a security for payment, that can only be understood in terminis juris, that in case the cautioner be distrest and make payment, that he may make use of his right for his payment and relief of the sum; but it is inherent in the nature of all bends of relief, that they do not take effect unless actually payment be made by the cautioner; and was expressly so decided in the case of the Laird of Kinfauns contra the Earl of Northesk*. And for the more effectual
* See General List of Names.
payment and relief of the sum, being assigned to the mails and duties of the lands, and having pursued a poinding of the ground, and for mails and duties, in order to his relief; the Lords found that he could do no diligence upon the bond of relief, unless he could instruct he was distrest, and had made payment; and that he could only have relief in so far as he had made payment. The Lords found the apprising null as to the annualrent of the 2000 merks, in respect Bonar the cautioner was not distrest, nor had made payment before the leading of the apprising.
Fol. Dic. v. 1. p. 126. Sir P. Home, v. 2. No 828.
