Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 20 January 1688
Sir James Cockburn v. Alexander Miln, Lord Ross, &c, Creditors of Hamilton of Grange.
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See the prior part of the Report of this case, Dictionary, page 1046. See Harcarse's Report, Dictionary, page 1051.
In the competition between the Creditors of Hamilton of Grange, debated this day in præsentia; it was contended for Sir James Cokburn against Lord Ross, Bonnard, Alexander Miln, and others, that, quoad a 4000 merks' bond, he ought to be preferred; because it was granted by John Hamilton of Grange as principal and the Lord Forrester as cautioner; and Sir James, father to the said John, had disponed the estate to the Lord Forrester, under a back-bond that it should subsist for relief of his cautionries. Answered,—The back-bond says only for relief of what he should be engaged in for Sir James.
Replied,—It bears, in the narrative, “for the well of the family;” ergo, It must extend to his cautionries for John the son, this being profitable et in rem versum. Duplied,—It is pactum mere personale, and so non egreditur personam of Sir James, per l. 7, § 8. D. de Pact.; and the son John being then an infant in familia, no father would grant a security for what debts the child should then contract, seeing he knew not but he might be riotous; and the ratio S. C. Macedoniani obviates this: and, esto it had been for a debt of Sir James's, yet, that being innovated and extinct by this new bond, it cannot be a security for it; and if it should be a security for Forrester's cautionries for the son, why not for the grandchild also, et sic in infinitum?
The Lords found the back-bond taxative only for Forrester's cautionries for Sir James the father; and therefore preferred the other creditors to Cokburn in this sum.
