William Montgomery, and - - his Assignee, v. Milne and Ballantine
Date: 1 February 1687 Case No. No 55.
A tenement was disponed for relief of a cautioner. This found no title of possession until the condition of paying the debt should be purified, or that he was distressed. There was no clause entitling to enter into possession until paid.
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William Montgomery, President Lockhart's servant, (who removed in this cause, though he might sit, being only his master, and cousin), and —— his assignee, pursue Milne and Ballantine, heirs to John and James Bonnars, to count and reckon for the mails and duties of a tenement in Edinburgh, disponed by John Peter to John Bonnar, for relief of a cautionry wherein Bonnar stood bound for Peter.—The Lords, on Harcarse's report, found it was no title whereon to enter to the possession or to adjudge, so as to possess by it; unless they would instruct that they had paid the debt, and so had purified the conditional infeftment; and would not burden the pursuer to prove, that John Peter, the principal debtor, had paid it, seeing the cautioner could not instruct he was distressed since 1650, (which was its date), and the bond of relief did not bear, that they might enter to the possession ay and while they were paid; and esto it did, what security had the granter of the relief that his rents should be applied to the payment of this debt? so that he should be still obnoxious to his creditor, and also be frustrate of the rents of his lands.
Fol. Dic. v. 1. p. 126. Fountainhall, v. 1. p. 444.
