John herbertson and Company v. James Rattray and Others
Date: 12 June 1793 Case No. No 82.
The cautioner in a suspension found not liberated by the circumstance of the decree under suspension being turned into a libel.
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Robert Rattray was cautioner for James Rattray in a suspension of a decree of a Sheriff, pronounced in absence against him. James objected to the decree, that it was pronounced when he was in England, and when he had neither domicil nor property in this country.
The Lord Ordinary turned the decree into a libel; and, in a reclaiming petition, it was
Pleaded, 1mo, for James Rattray: A decree can be turned into a libel, only where it is defective in point of form, and not where (as in the present case) it is fundamentally null.
2do, It was pleaded for the cautioner: A pursuer, by executing a citation at a place where the defender has no residence, may easily obtain a decree in absence against him. The relief against it only lies by letters of suspension, and these he can only obtain by finding caution to fulfil the decree, in case the letters shall be found orderly proceeded. All that the cautioner interposing in these circumstances can be held to undertake, is, that the decree is incompetent, but not that the claim itself is groundless. The pursuer otherwise would be rewarded for the irregularity of his procedure, and the defender punished, to whom no fault can be imputed.
Answered, 1mo, The object of turning a decree into a libel, is to save the trouble and expense of bringing a new action, the defective charge being held equivalent to a citation. The defender, therefore, never can be a loser by that means. Decrees liable to objections equally strong with the present have been turned into libels; Bruce, p. 178. 30th July 1715, Macready against Crawford, voce Process; 8th November 1692, Shaw contra Kennedy, No 72. p. 2146.
2do, The law presumes that every decree is just and formal; and as the creditor, who has parata executio, may be altogether disappointed by the delay occasioned by a suspension, before it is obtained, he is entitled to security for payment of his debt, and future expenses. The debtor who takes advantage of a point of form to evade payment of a just debt, is guilty of a wrong; and the cautioner, before undertaking the obligation, ought to examine the nature of the debt. By the act of sederunt 29th January 1650, the cautioner in a suspension is declared to be equally liable with the principal debtor; and, by common style, he is taken bound to pay the debt, ‘if it shall be ultimately found due.’ That he is not liberated when the decree is turned into a libel, was found; Forbes, 30th November 1709, Dunbar contra Muirhead, No 75. p. 2149. and confirmed by an express act of sederunt, 27th December 1709.
Observed on the Bench: No distinction can be made between one decree and another. The act of sederunt last mentioned is in force, and is decisive against the cautioner.
The Court unanimously adhered.
Ordinary, Lord Monboddo.For the Suspender, Dickson.Alt. Laing.Clerk, Home.
Fol. Dic. v. 3. p. 121. Fac. Col. No 59. p. 129.
