brother and father in law of Drysdale were bound conjunctly

FIRST DIVISION No LVIII 25th January 1839 THOMAS DRYSDALE and THOMAS SYME Senior against JAMES JOHNSTON Heritable Bond Principal Cautioner Evidence written and PAROLE Act 1695 c 5 AB and C granted an heritable bond jointly and severally in favour of D There was no clause of relief in the bond nor any separate bond of relief notarially intimated to D at the time D s agent who prepared the bond prepared also of the same date separate letters of relief which were delivered by A to B and C and which were attested by the same witnesses as the bond After the lapse of more than ten years from its date D charged B and C for payment who suspended Held 1st competent to prove before answer by written evidence apart from that afforded by the deeds that they granted the letters of relief unico contextu as parts of the same transaction and that D at the date of the bond knew and approved of the separate letters of relief and was aware that B and C were cautioners 2t held incompetent in the circumstances the written evidence being considered insufficient to examine the instrumentary witnesses as to the real nature of the transaction as that was equivalent to permitting parole testimony to establish the private knowledge of D Opinion Mere private casual knowledge by the creditor is not sufficient to entitle a party to the benefit of the septennial act 1695 c 5 Prescription Expenses Process Obiter A party unsuccessfully pleading prescription must pay expenses On 8th July 1826 James Drysdale blacksmith in Dollar granted a bond and disposition in security in favour of the charger Johnston for L 100 over certain subjects in Dollar In this bond the suspenders who were respectively the brother and father in law of Drysdale were bound conjunctly and severally and there was nothing ex facie of the bond to indicate that they possessed any other character than that of principals It contained no clause of relief nor was any notarial intimation at its date made to the charger that the suspenders were in reality cautioners Although payable at Martinmas 1826 it was not recorded till 6th January 452 No 58 DECISIONS OF THE COURT OF SESSION