Scottish Court of Session Decisions

Subject_1 CAUTIONER.
Subject_2 SECT. VIII.

Cautioner in a Suspension.

Margaret Schaw and Robert Cunningham, her Husband,
v.
Robert Kennedy

Date: 8 November 1692
Case No. No 72.

When a decree upon a registered bond is turned into a libel, as being registered in a jurisdiction to which the debtor is not subject, the cautioner in the suspension is liberated of course.

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On a petition given in by Margaret Schaw, and Robert Cunningham in Monghagen, her husband, against Robert Kennedy, a doubt occurred to the Lords, whether a cautioner in a suspension is liberated, when a decreet upon a registrated bond is turned into a libel, because it was registered on a wrong jurisdiction, where the debtor did not then dwell, and so a non suo judice, as well as when a decreet proceeding upon citation of the party before a judge, is, for some nullity, turned into a libel: And the plurality of the Lords thought there was no difference; for the charge and execution upon the one being as wrongous and null as upon the other, that instance perished, and the cautioner being only liable for the suspender if that decreet subsisted, he behoved to be assoilzied, if it fell to the ground. The next question was, if the registration was sufficient in the books of that jurisdiction and shire, wherein by the bond they were designed then to dwell, Where the creditor knew not of their changing their domicile; or if that must always follow them wherever they remove. But the Lords thought, though the designation in the writ was a presumption they still continued in that place; yet if the contrary was proven, the new domicile was the place Where they could only be convened; nam actor sequitur forum rei, id est, ubi habitat. See Jurisdiction.

Fol. Dic. v. 1. p. 129. Fountainhall, v. 1. p. 516.