Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Mr Hugh Blair v. Mr Patrick Bell
1694.
July19and
November6.
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July 19.—Mr Hugh Blair, late minister at Ruglen, against Mr Patrick Bell, cautioner for Mr William Nimmo, whose reason of suspension was,—I must be assoilyied from the debt, because I offered you the principal, annualrent, and expenses, and you refused to accept of it, unless I would give Mr William, the principal debtor, a supersedere, as you had done; to which I was not bound. Answered,—Before your offer, I had transacted with the principal to accept of my sum in parcels, and had given him a personal protection for a time, and so I could not simply assign; and you took advantage to make a captious and sham-offer at that time; and he is in as good condition now as then, and so you have no prejudice.
The Lords thought that a supersedere, given by a creditor to the principal debtor, could not debar or seclude the cautioner from his relief. And, if the creditor had only sought to have excepted it from the warrandice of his assignation, it would have been reasonable: but, upon reading the instrument of offer and the creditor's answer, they found he required the cautioner also to allow him the same supersedere he had given him, which he was not obliged to do. Therefore they sustained the reason of suspension on the offer as sufficient to liberate him; he proving, by the notary and witnesses inserted in the instrument, that he refused the assignation, except with the burden of protection to the principal debtor: and ordained them to depone.
Vol. I. Page 634.
November 6.—Upon a bill and answers, Mr Blair's charge against Mr Patrick Bell, mentioned July 19, 1694, was heard again. The Lords were clear that the fact in the instrument was not nuda verborum emissio, and so might be proven by instrumentary witnesses. But thir points weighed with them:—1mo, That the offer of assigning, in Blair the charger's letter, was conditional, if before Whitsunday; and so, not being accepted nor performed till long after, it did not bind; though such irritancies should be purgeable at any time. 2do. That he offered him a discharge without an assignation, which, on the clause of relief, would have reached Nimmo the debtor, notwithstanding the supersedere given by Blair. 3tio. That Bell, the cautioner, could not subsume that he was prejudged by the want of the said assignation; seeing Nimmo is as solvent now as then, being broke at both times.
Thir grounds being new, not formerly represented, the Lords altered their former interlocutor, and found the reason of suspension not relevant, founded on the instrument of offer; and therefore decerned; and found the letters orderly proceeded against Bell, the cautioner.
