Subject_1 ANNUALRENT. Subject_2 ANNUALRENT due ex pacto.
Sir John Houston v. Sir John Schaw
Date: 27 February 1702 Case No. No 18.
A party having given ticket for a sum, payable at a precise day, and if not then paid, obliging himself to grant bond for it bearing annualrent; although the creditor, after the day elapsed, did not require the bond, yet annualrent was found due.
Click here to view a pdf copy of this documet : PDF Copy
Sir John Houston pursues Sir John Schaw of Greenock, for payment of L. 2500 Scots, contained in his ticket.—Alleged, 1mo, Absolvitor from annualrents, because the ticket bears none.—Answered, It ought to be repelled, because it is made payable at a precise day; and if not then, Greenock is obliged to grant bond for it bearing annualrent.—Replied, You should have required me to grant that bond after elapsing of the day.—Duplied, In all these obligations dies interpellat pro homine, and it was your part to have offered it.——The Lords found annualrent due.—2do, Greenock craved compensation, because you became cautioner for my Lord Blantyre, in a suspension of a greater sum he owed me, and I have discussed the suspension, and obtained a decreet against Blantyre, which he produced extracted.—Answered, No liquid compensation, because the principal is not yet discussed, and I condescended on an estate both heritable and moveable, belonging to him, to be subject of discussion.—Replied, By your bond of caution you became obliged to pay the sum, how soon the principal suspender shall be found debitor therein, and so no need of discussion.—Duplied, Whereever cautioners are not bound conjunctly and severally, they are only subsidiarie liable, and has been always so found by a constant tract of decisions; and though the last case, 16th December 1698, Sir John Dempster against Bayne of Tulloch, (Fount. v. 2. p. 26. See Cautioner.) be adduced as contrary, yet it had no contingency with this, for it was against the attester of a cautioner in a bond of presentation.——The Lords found Houston only subsidiarie liable. Some started, what was meant by discussing the principal suspender before access to the cautioner, and it was said, denunciation was sufficient; but others thought, if he had a land estate, adjudication behoved likewise to be used. (See Cautioner.)
Fol. Dic. v. 1. p. 37. Fountainhall, v. 2. p. 153.
