Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
James Haliburton of Fodderance v. Peter Wedderburn of Gosfuird
Date: 31 January 1696
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Rankeilor reported James Haliburton of Fodderance, against Peter Wedderburn of Gosfuird, for relieving him of the sum of 2000 merks, wherein he was cautioner for Pitcurr, from whom Gosfuird had taken a security for 10,000 merks, which he was to pay to the Lady Balgillo, David Yeaman, and the relict of one Yorkston; and, if he paid more than the said 10,000 merks to them, then they were obliged to assign him to their debts; ita est, the second sum named was the bond wherein Fodderance was bound as cautioner.
Answered,—He was only liable to pay out 10,000 merks, which he had done by satisfying the first and third debt; and the clause, “if he paid more,” was wholly in his own option, and noways obligatory. And, though Yeaman's debt was named secundo loco, yet that did [not] import any preference given it before the third, which he had paid; seeing the bond did not oblige him to pay them in the order as they were named; for then it would have borne the adjection of these words, in the first, second, and third place; and Bartolus, ad tit. De Vulgari et Pupillari Substitutione, says, Ordo intellectûs et mentis contrahentium magis attenditur in dubiis quam ordo scripturœ.
Replied,—Such clauses are not adjected to operate nothing; and the least they can signify is, that he could not give a total preference to the last in exclusion of the second, but behoved to take them in at least equally and pro rata.
But the Lords, conjoining the two together, viz. the obligement providing for his security, in case he paid out more than the 10,000 merks, and the order they were ranked in, found Gosfuird bound to relieve him of the whole debt and cautionry in Yeaman's bond.
