The cautioner in a suspension, found bound to pay to the party preferred at discussing the suspension, whether the charger or another.
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James Sclanders having charged certain tenants for payment of their rents, in victual and money, they suspended upon caution.
At discussing, Bessie Bennet and her husband compear for their interest; and being preferred to the charger, the tenants are decerned to pay their rents to Bessie Bennet and her husband; who present a petition to the Lords, shewing that the bond of cautionry, in the suspension, as conceived, is in favour of the charger, in so far as the Lords shall decern at discussing; whereby the petitioner, who is preferred to the sums charged for, has not direct access against the cautioner, without a special warrant, which they crave.
‘The Lords, considering that the design of the bond of caution is, that the sum charged on should be secure, in the event that the same were found due; and that albeit, according to the conception of the bond, the same could not be registrated, and horning granted upon it in favour of a third party preferred; yet the cautioner being bound for the debt, the Lords, by deliverance, granted warrant for letters of horning against the cautioner, for payment of the sums decerned, and made an act of sederunt, that in time coming there should be an addition to the style of bonds of cautionry, and that the cautioner should be bound to pay or perform to the charger, or any other person found to have best right, in so far as the suspender should be found liable.’
Fol. Dic. v. 1. p. 129. Dalrymple, No 174. p. 240.
