Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.

Kinuosse
v.
Cleilland, Merchant

Date: 18 December 1677

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In the action, Kinrosse against James Cleilland, merchant, one comes to Cleilland to take off clothes and other ware: he tells he must have a cautioner: he brings one, who declares, if what was taken off was within 200 merks, he was content to engage to see the merchant paid; if otherwise, then he would not engage: there is more taken off than 200 rnerks; the cautioner is pursued. He Alleges absolvitor; because he had trusted him far above 200 merks; and his being cautioner for him was only conditional; and, the condition not observed, he was altogether free. Answered,—Utile per inutile non vitiatur; he was not craving him to be liable quoad excessum, but only ad concurrentem quantitatem. Replied,—Stipulatio was individua; and, not being then accepted, it was in totum inutilis: § 5, Institut. de inutilibus Stipidationibus. Duplied,—Vinnius there confesses that was but a subtle nicety, and contrary to Lex 83, § 3, D. de Obligationibus.

The Lords found (referente D. Pitmedden,) the cautioner was obliged for 200 merks, and presumed the merchant's acceptation of it at that time by his present declaration of his mind now, (because of the exuberance of faith in re mercatoria). Yet see Lex 52 D. Locati, cited by Vinnius, ubi supra, who distinguishes inter contractus onerosos et lucrativos: but I see not the reason of it.

Advocates' MS. No. 694, folio 313.