ROBERT HUTCHISON v JAMES STEVENSON (Court of Session)

I. The claim of the pursuer, for interest alleged to have been paid by him as cautioner for the advocator, is founded upon a personal obligation contracted in 1823, long prior to the advocator's sequestration. In that sequestration the advocator obtained from the Court a complete discharge of all debts contracted by him prior to the date of sequestration, and this obligation must be held as extinguished thereby.

II. The sums which the advocator paid to Scott after his discharge were not paid as interest upon the bond, but as rent of the house which he was allowed to possess, and therefore cannot be held as an acknowledgment of the debt, or as reviving the obligation which had previously been extinguished by the discharge.

III. It is of no consequence that the question is between a principal and his cautioner. A debt or obligation to a cautioner was equally covered by the discharge, as any other debt contracted by the advocator previous to sequestration.

II. The advocator, by possessing the subjects, came under an obligation to pay the heritable creditor the interest upon the debt, and of course equally bound to relieve the respondent, who had been compelled to pay as his cautioner.

III. The payments made by the advocator of two years' interest on the bond, after he had obtained his discharge, bar him from pleading that discharge in defence against the present claim; and, at all events, these payments were a sufficient recognition or redintegration of the debt, to exclude any effect of the discharge in the sequestration.