Scottish Court of Session Decisions

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

Wishaw
v.
Andrew Lundy

1687. June.

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In a competition between the creditors of Sir John Brown, and Andrew Lundy, cautioner for him to John Oliphant, who, upon distress, paid the debt, and took a discharge to the debtor, his heirs and co-cautioners,—and to whom Oliphant assigned an apprising of the debtor's lands, led in his, Oliphant's name, after granting of the discharge;—it was alleged by the other creditors, That Andrew Lundy is presumed to have made payment of the debt discharged with the debtor's own means, he having been tutor to Sir John Brown's daughter, and intromitter with her estate; and therefore the apprising, following upon a paid debt, is null. Answered, The discharge narrates Lundy to be a distressed cautioner, and bears to be granted for his relief, as to which it was equivalent to an assignation; so as Oliphant might, even after the discharge, lead the apprising for Lundy's behoof. The Lords found the answer relevant, and sustained the apprising, even for accumulations. Vide No. 298, [Wishaw against Andrew Lundy, January 1684;] and No. 308, [Wishaw against the Children of Andrew Lundy, March 1684.]

Page 80, No. 327.