Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
William Sommervell v. Robertson
Date: 25 November 1697
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The Lords advised the cause between William Sommervell, merchant in Edinburgh, and Robertson in Glasgow. Sommervell being debtor to Robertson in a sum, he gave him, for security, a bond granted to himself and the said Robertson, by one Skails, a merchant, for the equivalent sum, together with a declaration,—that if Robertson did not recover payment from Skails, after due and legal diligence, then Sommervell should pay him the debt, Robertson always restoring the bond and putting him in his own place. Robertson takes out caption against Skails; but, he breaking and flying to the Abbey, Robertson delivers back Skails's bond, with the horning and caption, to Sommervell, and now contends he must be liable to him for the debt. The question was,—On whose peril Skails broke?
Robertson alleged,—He had done sufficient diligence, and that Sommervell had rendered his case worse by subscribing a supersedere to the common debtor, Skails.
Sommervell answered,—The restoring the bond was not sufficient; for though it was also in my name, and so I had jus exigendi, being correus credendi, as well as Robertson, yet, the horning and caption being in your name, I behoved to have a retrocession, which you never offered me; and, as to the supersedere of personal diligence, it was for other debts, and not for this.
Replied for Robertson,—You was in mora, in not seeking an assignation, which I would never have denied; and, as to the supersedere, it must only be ascribed to this debt, because your other debts were but debita eonstituenda, and not liquid at that time, as this was.
The Lords found Robertson liable in diligence; and that he had not implemented the trust, in regard he did not offer a retrocession; and that the supersedere did not exoner him; and therefore found he behoved to rest content with Skails's debt, and could not now offer it back to Sommervell, who was not obliged to accept of it.
