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.
William Cochran of Kilmaronock and Others v. Archibald Houston
Date: 3 December 1708
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Mr William Cochran of Kilmaronock, and sundry others, being bound for considerable sums, as cautioners for Hamilton of Orbiston; when he sold his lands of Erskine to Blantire, it was agreed, that those debts wherein Kilmaronock and others stood engaged, should be paid out of the price, for relieving them of their cautionary, primo loco; and accordingly sundry of their bonds being satisfied and retired, they were put into the hands of the deceased Archibald Houston, writer to the signet: and now a bill is given in, craving they may be given up, or else put into the clerk's hands for security of the cautioners, lest they wander and come back on them hereafter.
Answered,—That Archibald Houston had debursed money for Orbiston, and likewise had an account due to him for writings and pains; and, until these were paid, he had a tacit hypothec on the papers.
Some doubted of this privilege claimed by writers, especially as to lent money; yet the Lords thought, if the writs were taken out of their hands, they had no security for their accounts, it being on that pledge they advanced their money; therefore they remitted to the Ordinary on the Bills to consider his account, and the instructions thereof, and modify the same, that then the papers may be put into the clerk's hands, for the cautioners' security; to be delivered up if no objection be made by the creditors, or any other having interest in these bonds; at least inventoried, and declared paid out of the principal debtor's effects.
