Scottish Court of Session Decisions

Subject_1 HERITABLE and MOVEABLE.
Subject_2 SECT. XX.

Claim of Relief.

Wardlaw
v.
Wardlaw

Date: 10 July 1629
Case No. No 117.

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The Laird of Torrie, for the relief of the sums of money for which he became cautioner for Mr David Wardlaw, was infeft in the said Mr David's lands of Cullarnie. Before Torrie's decease, he paid the sums for which he was cautioner. The Laird of Torrie's Heir pursues Mr David for the sums as due to him, by reason his father was infeft in his lands for his relief; likewise the Laird of Torrie's Executors pursue Mr David for the same sums, as due to them, alleging the bond of relief to be moveable, and consequently due to the executors.——The Lords found the sums due to the heir, and he who only could renounce the infeftments.

Fol. Dic. v. 1. p. 373. Auchinleck, MS. p. 3. *** This case is reported by Durie:

Umquhile Wardlaw of Torry being cautioner for Mr David Wardlaw in a sum by an heritable bond, and for his relief, beside the clause of relief contained in the bond, having taken infeftment in his principal lands, the cautioner having paid the sum, being distressed therefor; and after his decease the cautioner's heir, and also his other bairns, as executors to him, either of them claiming this relief to be due to them, and pursuing by two distinct pursuits, the principal party for payment of that sum, the one as due to the executor, and the other as due to the heir, in respect that he alleged, that the bond being heritable, the relief ought to be of that same nature; likeas the infeftment given to the defunot for his relief proved that the same pertained to his heir and not to his executor; it was found, nevertheless, that the said relief so sought against the principal party, by personal pursuit, was due to the executor, and not to the heir; seeing the heir sought not the benefit of his infeftment, as he might against the land, if he had been distrest, but only pursued personal action for payment; and that infeftment would not have prejudged the defunct in his own time, to have miskenned the relief, which he took by infeftment, ad majorem securitatem, and to have sought the same by personal pursuit from his principal, and so it pertained to him, as he pleased; and was found competent to his executors, seeing the relief by the infeftment is due to the heir; for if the heir sought it off the land, wherein the defunct was infeft, he could not be prejudged thereof, and so there is a great scruple here.

Clerk, Gibson. Durie, p. 459.