Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
John Strahan v. Patrick Telfer
1692.
December7 and
13.
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Dec. 7.—John Strahan, writer, against Patrick Telfer. The Lords found the bond of cautionry given by John Strachan to Telfer, for presenting George Smith, and paying what he should be decerned in, null, on thir three grounds; because the Lords had decerned them to find caution to one another, which Telfer failed to do, finding only Robert Curry, a broken man, cautioner, which being rejected, Strahan's bond was causa data causa non secuta. 2do, That Telfer was in mora in raising his wakening, and discussing his claim against Smith. 3tio, That Smith being now dead, and this being of the nature of a presentation and cautio judicio sisti et judicatum solvi, it was by Telfer's fault turned imprestable.
Vol. I. page 528.
December 13.—On a bill given in by Telfer against Strachan, about the bond of cautionry declared null, supra 7th Dec. current; the Lords found the last ground of reduction not solid, viz. that being cautio judicio sisti et judicatum solvi, it expired with the death of the principal party, for they thought a cautioner judicatum solvi, as Strachan was, became not liberate by the principal's death; but sustained his absolvitor, and reduced the bond on the first two grounds, and added to the first, that Curry was either then broke or suspected; seeing there was adjected to his bond an attestation of him as sufficient, which was then required, but never subscribed.
