A charge on a bond of relief, though before distress, was found noways unwarrantable nor unjust. Therefore, tho' the principal suspended such a charge, the cautioner, and his attester were found to remain still bound to the charger.
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Rankeilor reported Sir Thomas Kennedy contra Sir Gilbert Elliot of Stobs.—Sir Thomas being one of the partners with Sir John Cochran, of the poll laid on in 1693, he transacts with Sir Charles Murray of Hadden, who buys his share, and Sir Thomas takes a back-bond from Hadden to relieve him of the tack-duty, and of all cost, skaith, and damage he could incur thereby. There coming to be loss by that tack, Sir Thomas charges Hadden to relieve him in the terms of his back-bond. He suspends, and finds his son William Murray cautioner; but the clerk to the bills refusing him, Sir William Elliot of Stobs, Hadden's son-in-law, attests him; whereupon the suspension being expede, it was determined against Hadden; and William the cautioner being likewise discussed, he insisted last of all against Sir Gilbert Elliot of Stobs, as heir to his father the attester; Who alleged, 1mo, His father's attestation subjoined to the bond of cautionry was null, as wanting writer's name and witnesses:—2do, That the attester of a cautioner in a suspension, is no farther bound but to prove that the cautioner was holden and repute solvent at the time, which William Murray the cautioner then was.——The Lords, before answer, allowed a conjunct probation, as to the custom of subscribing attestations in the bill-chamber, and the pursuer to prove the cautioner's insolvency at that time, and the defender to prove he was holden and repute solvent. And the Lords having advised the probation, found it proven to be the general custom, to receive attestations without either writer's name or witnesses; and also proven, that William Murray, the cautioner, was then solvent: Whereupon decreet went forth against Stobs, which he suspended; and, at calling, insisted on this reason, That he was minor the time of obtaining that decreet against him, and he was lesed by his procurators omitting this relevant defence for him; that Sir Thomas's charge against Hadden, the principal suspender, was null and unwarrantable, being on a general bond of relief, without any previous distress either alleged or produced; and that such an obligement to relieve cannot be the ground of a charge till distress precede; and therefore, the charge being unjust, the suspension must necessarily be just; and if it be relevant, the cautioner is liberate, and consequently the arrester: And Stair, b. 1. tit. 17, lays it down as a principal, That if the decreet suspended be turned into a libel, and the reasons of suspension be relevant and proven, though elided by a reply, the cautioner is free, and cites for it a decision in Spottiswood, Weir contra Bailie, No 68. p. 2142.; and the like was found, 26th March 1628, Vaus contra Law, No 42. p. 2114.; 2d January 1683, Sir Robert Colt against William Somervell, No 70. p. 2143; and 27th November 1685, More contra Finnison, No 71. p. 2145. Even so cautioners, as law will, et judicio sisti, are liberate on incompetency; and so it was decided in the Supreme Court of Friesland, teste Joanne a Sande, lib. 3. tit. 10. definit 3. Now, to apply this to the present case, Sir Thomas Kennedy was never charged for the tack-duty which Hadden was bound to relieve him of, nor was the debt constituted or liquidated, so as he could know what to relieve him of; and therefore, the charge being general and unwarrantable, the suspension was just, necessary and warrantable, which is sufficient to liberate the cautioner, and he falling, so must his attester.—Answered for Sir Thomas, That the rule is quite mistaken; for a charge on a bond of relief is both legal, just, and ordinary, even before distress, its style being to free, relieve, and skaithless keep, which is not that he shall pull me out of the mire when I am cast in, but that he shall prevent my being tumbled therein; and it is more reasonable to free me before distress than after. And Stair, in the place above cited, says, Though cautioners have not ordinarily action against the principal debtor till they be distressed, where the cautioner has only a clause of relief in the bond, yet it is otherwise where the bond of relief runs in these terms, to free, relieve, and skaithless keep; and esto he were minor, yet the reason insisted on was no-wise relevant to assoizie him.——The Lords found a charge on a bond of relief, though before distress, was nowise unwarrantable nor unjust; and therefore the cautioner and his attester stood still bound to Sir Thomas, and decerned against Stobs, in the terms of the bond of relief.
Fol. Dic. v. 1. p. 128. Fountainhall, v. 2. p. 219.
