Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Doctor Weymes of Kirkliston v. Sir Hew Campbell of Calder
1693.
February14;and
Nov.10 & 15.
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The Lords, by plurality, found, That Calder, being only cautioner for the Marquis of Argyle, and not bound on the corroboration given by the Earl, that he had not the benefit of the defence founded on the act rescissory of fines and forfeitures in 169O, nor of the Earl of Argyle's special act of restitution in 1689; seeing the Marquis was not restored, and no forfeitures were rescinded but these which had been pronounced since 1665, and the doom of forfeiture against the Marquis was in 1661; and that the bond of corroboration given by the Earl could not prejudge Doctor Weymes, the creditor, of insisting against any of them. Two of the Lords were of a contrary opinion; and thought, that the last Earl of Argyle, having corroborated the debt, though Calder was not bound with him therein, yet the creditor, having accepted it, it stated the Earl as principal debtor, and consequently gave Calder the benefit of his restitution, viz. to be free of the annualrent during the forfeiture; at least the committee of Parliament is to cognosce thereon, and what sort of execution should pass for the principal; for, if the Earl had been heir to the Marquis, his father, then Calder would have been reputed as cautioner for him; and they argued this was par casus.
Vol. I. Page 559.
November 10.—In the petition given in by Sir Hew Campbell of Calder, against Doctor Weymes, mentioned 14th February last, the generality of the Lords seemed to think the clause in the Act of Parliament 1693 was but a relative clause, and so could go no farther than the act 1690; but, in regard it had the words “cautioners for the debt,” more than the first act, which only speaks of the forfeited person's cautioners; therefore they ordained that point to be heard in their own presence, if this last act superadded any thing in favours of cautioners more than was in the first act; or if it was only a bare repetition and exegetical of the former, without any design of extension of the favour and privilege, which some thought exorbitant enough before.
Vol. I. Page 568.
November 15.—The Lords, after a hearing, advised the cause of Weymes against Calder, mentioned 10th current; and, notwithstanding that there was some variation in the words of this last Act of Parliament from the former, and that it seemed to relate to cautioners for the debt, rather than for the person forfeited; and that verba in statutis non debent esse otiosa, sed aliquid operari, and that it was attested these words were adjected by the Parliament on purpose to comprehend Calder's case; yet the Lords found this clause only relative, and made no alteration of the former act, and therefore adhered;—looking oil the act as severe enough without the help of any extension. This was carried by six votes against five.
