Scottish Court of Session Decisions

Subject_1 CAUTIONER.
Subject_2 SECT. IV.

Cautioner, how far Liable.

The Town of Aberdeen
v.
Divvie

Date: 13 November 1677
Case No. No 22.

A cautioner, not bound conjunctly and severally with the principal, found not conveenable without the principal.

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The Town of Aberdeen having given commission to Gilbert Divvie to collect a stent on the Town, as appears by their act produced; William Divvie, his father, becomes cautioner for his fidelity and duty in that commission; whereupon the Town pursues Patrick, as representing William, his father, for payment of the sum; who alleged no process, because his father was only cautioner, and not bound conjunctly and severally; and so but liable subsidiarie after the principal party is discussed.—It was answered, That the principal is a known bankrupt, and nothing can be condescended on that he hath to affect; and therefore, as heirs of provision are liable, without calling the heirs of line, unless it be condescended on what estate the heirs of line have; so must it be here.—It was replied, That the case is not alike; for here the principal party, whatever estate he hath, may compt and produce discharges, if he were called.

The Lords found no process, and assoilzied from this libel; and would not continue the same against the principal party, though bankrupt, but did put them to a new process.

Stair, v. 2. p. 557.