Scottish Court of Session Decisions

Subject_1 CAUTIONER.
Subject_2 SECT. VII.

Relief of Cautioners.

Kirkwood
v.
Ferguson

Date: 19 July 1633
Case No. No 46.

A cautioner who had received from the principal debtor a right to intromit at his own hand for his relief, afterwards pursued for spuilzie, was assoilzied.

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Margaret Kirkwood pursues Robert Ferguson for spuilzie of goods out of her house, committed in February; and the defender excepting upon a disposition preceding, made by the pursuer to him of these goods, for relief of his cautionry, wherein he was bound for the pursuer, in which disposition she gave him power to intromit with the goods at his own hands, and renounced all action of spulzie, and all other action competent to her therefor; by virtue whereof he intromitted, and so alleged he ought to be free of spuilzie; the exception was repelled, and the action sustained; because the sum wherefore he was cautioner for the pursuer was not payable till Whitsunday, and the spuilzie was committed in February before that time, so that neither the term being come, nor he distrest any ways therefor by the creditor, that disposition could not sustain his intromission had at that time foresaid; but the Lord's reserved the modification to themselves after probation.

December 14.—One Kirkwood pursuing Ferguson in Galloway for spuilzie of her goods out of her house in Glasgow; the defender excepting, that he was cautioner for the pursuer in a sum owing by her to her creditors, for his relief whereof the pursuer had disponed to him these goods; in which disposition she gave him power, for his relief, to intromit with these goods libelled at his own hand, without all danger of spulzie, or any action to follow thereon against him. which she renounced; according whereto, fearing his relief to be uncertain, and seeing that the pursuer disponed some of the said goods, (whereby his relief might be frustrate,) he intromitted, and he was content being relieved to restore all again with which he intromitted; this exception was found relevant by the Lords, to liberate the defender from all action of spuilzie, and to assoilzie him therefrom simpliciter, notwithstanding of the reply, that the pursuer offered to prove, that any alleged disposition, that she had made of any of the goods, whereupon the defender excepted, was only of a brewing caldron which she had only set out to one for hyre, viz. of so much money to be weekly paid therefor and upon bond to deliver the same again to the pursuer, after the time of hyring convened upon; by the which deed the excipient's case, and the disposition made to him, was no ways prejudged, and he could not allege, nor condescend upon any other of the goods libelled, to have been disponed by her, and this was lawful for her to do; neither could the exception be sustained upon that disposition made to him for his relief, to give him power at his own hand, without authority of any Judge or Magistrate, to meddle with the same goods, specially seeing the same was made for his relief, and before his distress, he could never have intromitted; likeas he was never distrest, nor yet is distrest there-for, nor able to show any distress, and of law qui rem, quamvis suam, non jure occupat, punitur ut invasor, et cadit a jure, quod in re habet; and the pursuer having sundry gentlemens' sons in boarding, by this malicious meddling with her whole gear, and plenishing of her house, and leaving nothing therein for her use, they had deserted her, she having nothing left but the bare walls, which has redacted her to great misery; which reply was rejected, and the exception sustained, albeit there was no distress alleged.

Durie, p. 686. & 695.