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John Dowall, as Assignee by Lauchlan Lessly, v Sir John Home of Blackader. [1693] Mor 2072 (20 January 1693)
URL: http://www.bailii.org/scot/cases/ScotCS/1693/Mor0502072-002.html Cite as:
[1693] Mor 2072
John Dowall, as Assignee by Lauchlan Lessly, v. Sir John Home of Blackader
Date: 20 January 1693 Case No. No 2.
An obligation granted by a third party to a creditor, to cause the debtor pay, or else to pay the debt himself, was found to be fidejussory only; and that any exception competent to the debtor, was competent to him as cautioner.
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The Lords found, 1mo, That the tenor of Blackader's bond, to cause the tenant pay, or else he should pay it himself, being fidejussoria et ad factum præstandum, he was only expromissor and cautioner, and that any exception that was competent to the tenant, who was here in place of the principal, was also competent to Blackader: But, 2do, found that this bond was special as to the rent of the year 1666, extending to L. 2200, and was liquidate by the subsequent year 1667; and so, though the tenant had the benefit of the prescription of five years, introduced by the act of Parl. 1669; yet Blackader could not cloath himself with that defence; because, his bond being special quoad that year, he fell within the exception of the said act, and had not the benefit of the prescription; but found as to the rests due before the 1666, he was not liable, because they were general and indefinite: And as to the year 1667, he could not be liable, though it was special, because the term of payment of that year's rent was not then due when Blackader gave the bond, and so was but equivalent as if he had been cautioner in the tenant's tack, which obligation in writ would not hinder the prescription, if not pursued for within five years after the tenant's removing out of the ground: And found the tenant needed not be cited and first discussed here by John Dowall; but allowed a diligence to Blackader, to call the tenants here incidenter, if he had any other defence to elide the debt.
Fol. Dic. v. 1. p. 123. Fountainhall, v. 1. p. 548.
