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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Sir James Hall of Dunglass v Dame Janet Murray, Lady Pitfirren. [1707] 5 Brn 33 (18 March 1707)
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Cite as: [1707] 5 Brn 33
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[1707] 5 Brn 33
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.
Date: Sir James Hall of Dunglass
v.
Dame Janet Murray, Lady Pitfirren
18 March 1707 Click here to view a pdf copy of this documet : PDF Copy
In the process at the instance of Sir James Hall against Dame Janet Murray, as representing her father Sir Patrick Murray, this dilator being proponed for the defender: That the process being founded upon a charge at Sir James's instance against the deceased Charles Murray of Hadden, as principal, and the said Sir Patrick Murray as cautioner, which was suspended upon compensation; and after it had been let sleep, wakened only against the said Dame Janet Murray as representing her father; whereas it ought also to have been wakened against Charles Murray's representatives: it being a rule that in all wakenings the principal cause must be wakened in the same state it was, and all relating to the process given out.
Answered for Sir James,—That it was entire to him to insist against both or either of the representatives of Sir Patrick or Charles Murrays as he thought fit, their predecessors being bound conjunctly and severally to him: and whom one is not obliged to call in the beginning of a process, he is not obliged to continue the process in all its steps against.
Replied for Dame Janet Murray,—Albeit it was in the option of Sir James Hall in the beginning to have charged Sir Patrick, who was bound conjunctly and severally with Charles; yet seeing they were both charged, and the suspension passed in both their names, it ought to be wakened against both. For though Sir Patrick being a cautioner bound conjunctly and severally, had not beneficium ordinis, yet payment by the principal did exoner him: and consequently, the grounds of compensation proponed for the principal ought to be first discussed; and the process wakened against his representatives, for that end.
Duplied for Sir James Hall,—That any real defences that were competent to Charles Murray, are competent to the Lady Pitfirren, as representing his cautioner: and for proving thereof, she may have a diligence to recover papers out of the hands of the representatives of the principal debtor.
The Lords repelled the dilator.
Page 155.
The electronic version of the text was provided by the Scottish Council of Law Reporting