Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Alexander Drummond v. Thomas Calderwood
Date: 16 July 1707
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Mr Alexander Drummond, writer to the signet, as principal, and James Cockburn, writer in Edinburgh, as cautioner, grant bond to Janet Calderwood for 1000 merks, not to be payable but at the sight and by the advice of Thomas Calderwood in Dalkeith and Alexander Reid, goldsmith in Edinburgh. The said Janet being married to John Little, he pursues William Cockburn, the heir of the cautioner, before the Commissaries of Edinburgh, for payment; and though he instructed that a considerable part of the sum was paid to the said Thomas Calderwood, and his receipt produced, yet the Commissaries repelled the defence; because neither the said Janet herself consented, nor yet Alexander Reid, the other party, by whose advice it was to be uplifted. Whereupon William Cockburn was decerned, and accordingly made payment, and pursued Drummond, the principal debtor, to relieve him; who repeated the foresaid defence, That he had made partial payments to Thomas Calderwood. And he likewise compearing in the process, did further allege, That the payments made by him could never be repelled, on pretence of the want of the said Janet's or Alexander Reid's consent; but ought to be sustained, because he offered to prove, that what he uplifted was in rem version of the minor, and applied for her necessary maintenance, education, clothes, apprentice fees, &c. Which the Commissaries still repelling, Mr Drummond was forced to pay it in to William Cockburn, the cautioner's heir. Whereupon Mr Drummond, as his last refuge in law, intents a process of repetition against the said Thomas Calderwood, for repaying the sums contained in his receipts, which the Commissaries had refused to allow, as being indebile solution.
Answered for Mr Calderwood,—That the Commissaries had committed gross iniquity in repelling his unanswerable defence, That whatever he uplifted was in rem versum to the minors; and you Drummond nor Cockburn ought not to have acquiesced therein, but you should have suspended on that reason; and, having neglected the remedy law gave you, can never recur against me; but tibi imputes.
Replied,—This comes too late, and is neither competent nor relevant now: not competent, after two decreets, in both which you are compearing yourself, and proponing all you can say; and not relevant, because twice repelled. And whether the Commissaries' sentence be cequa or iniqua is not the question, seeing you were not only certiorated of the whole procedure, but ought to have suspended for me; which you having omitted, you must be liable in repetition of what is found to have been unwarrantably uplifted by you.
The Lords found an evident loss and hardship on both sides; and that they were both in damno vitando; the only question being, Which of them should have suspended? The Lords found neither Cockburn nor Drummond ought to have paid on the Commissaries' decreet, without suspension; and that the Commissaries should not have repelled that relevant defence of being in rem versum; and therefore found the said defence yet competent and relevant against the cautioner's heir, notwithstanding the Commissaries' decreet; and assigned a term to prove it.
