In what cases a Cautioner may remain Bound, where the Principal gets Free.
John Doull, and Other Creditors of Lauchlan Leslie, v. Sir John Home of Blackader
Date: 19 December 1695 Case No. No 11.
A cautioner was liberated, the principal, a tenant, for rent, being free by the quinquennial prescription.
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In the action pursued by John Doull, and other creditors of Lauchlan Leslie, against Sir John Home of Blackader, for payment of a tack-duty of some lands in East-Nisbet, in the Merse, for which Sir John's father became cautioner to the said Lauchlan, as Chamberlain to that estate: The defence was on the quinquennial prescription, introduced by the act of Parliament 1669. Answered, He was in the exception of that act, his obligement being a special writ quoad the crop 1666, and precedings, whereof the terms of payment were past, the time he became cautioner; and the Lords having found so, and the act being extracted accordingly, he could not be heard now to reclaim against the same. Yet the Lords remembering they had often reconsidered interlocutors though extracted; and in the case of Gray of Balgony against Irvine of Cairn-field*, the last winter session, the Lords were clear, if it had been only an act, they would have reviewed the grounds of that protutory; but being found a decreet, the review was precluded: So here the Lords finding this to be allenarly
* Fount. v. 1. p. 530. voce Minor. See Process.
an interlocutor, they reponed Blackader against the same; and, by a second vote, sustained this defence as sufficient to assoilzie him, that his bond was only an accessory additional and cautionary obligation to cause the tenant pay tanquam expromissor, and so any exception defending the tenant was competent to him; but if the principal tenant were pursued, or his representatives, they would have this unanswerable defence, that they were not convened within five years after removal from the land, and so payment is presumed, unless ye offer to prove resting owing by my oath; and therefore assoilzied Blackader.
Fol. Dic. v. 1. p. 124. Fountainhall, v. 1. p. 689.
