Scottish Court of Session Decisions

Subject_1 CAUTIONER.

Mr Robert Blackwood
v.
Haliburton

1747, June 5.
Case No. No. 17.

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Sir Robert, William, and Robert Blackwood, anno 1715, granted bond to Birnie of Broomhall for L.2000, and Sir Robert got a bond of relief from the other two. In 1735 Broomhall pressed Robert for the money, and 13th December 1735 he gave the money to his brother-in-law Mr Haliburton to pay it, but at the same time took from Mr Haliburton an accepted bill for L.180 sterling, payable at Candlemas next, and Haliburton that day paid the bond and took an assignation. 18th December, Robert Blackwood borrowed from the Bank L.146 upon his own bill, and deposited Mr Haliburton's L.180 bill in security, and 10th. August 1736 paid the Bank. But 25th September 1736, Haliburton and hevjoined in borrowing from the Bank L.180. 10s. on their joint bill of that date, and in April 1737 Robert Blackwood paid part of that bill, and they both gave a new bill for the balance of L.121, which Haliburton paid after Blackwood's death: and thereupon sued the heirs of William and Robert Blackwood, as assignee by Broomhall to the L.2000 bond, for payment of that L.121 sterling as the balance still due him, and got decreet; which coming to the knowledge of Mr Blackwood's son and heir of Sir. Robert, he pursued a declarator of extinction of the L.2000 bond, as paid with the money of Robert Blackwood the debtor. Alleged for Haliburton, it was his money and not Robert's, for that he gave his bill to Robert for it, which bill he afterwards used, and at last Haliburton got to pay it, or of another bill that came in place of it L.121 with interest, and therefore is still creditor in that balance. But we thought this was no more than a device for Robert Blackwood to pay his debt with his own money, and yet keep the security against the cautioner for a fund of credit for after borrowings; for on that 13th December Robert Blackwood did not mean to lend Haliburton L.180, but to pay his own debt to Broomhall, nor did Haliburton mean then to borrow from Blackwood, for he had no use for the money, and Haliburton was brother-in-law to Blackwood, and could not be ignorant whose debt it was:—Therefore we sustained the declarator of extinction quoad Sir Robert, and declared accordingly, reserving his action against Robert's heirs-nem, con., only Kilkerran first differed but at last seemed convinced.