Scottish Court of Session Decisions

Subject_1 CAUTIONER.
Subject_2 SECT. VIII.

Cautioner in a Suspension.

Hume
v.
Hume

Date: 6 January 1681
Case No. No 69.

A bond of caution found good against the cautioner, altho' it contained an obligation on the principal, and he had not subscribed it.

The cautioner in a suspension is bound for the principal, not with him.

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George Hume pursues Mr Patrick Hume upon this ground, that umquhile Hume of Rentoun having granted bond to one Willet in London, whereunto George Hume is assignee, and charged Rentoun thereupon, he did suspend, and found an insufficient cautioner, but Mr Patrick his son, attested him to be sufficient. The pursuer having discussed the suspension against Sir Alexander Hume, now of Rentoun, he insists against Mr Patrick, as attester, for payment of the sum, who alleged, 1mo, That the bond of caution was null, containing an obligement for Rentoun to relieve the cautioner, which Rentoun subscribed not; so that this bond being in effect a mutual contract, cannot oblige the cautioner, unless the principal had subscribed. It was answered, That whatever may be pretended as to bonds, where one party is principal and another cautioner, when the cautioner subscribes and the principal subscribes not, yet there is no ground to quarrel cautioners in suspensions who do not become obliged with the principal, but for the principal, that he shall pay what shall be decerned; and though the bond contain a clause of relief, though the insolvent cautioner did not see to the signing of that clause, it imports not. ‘The Lords sustained the bond of caution, though the bond of relief was not signed.’ The defender further alleged, That he did only attest the cautioner in the second suspension, and therefore was not convenable till the cautioner in the first suspension was discussed. ‘The Lords repelled the defence, but ordained the pursuer to assign Mr Patrick to the first bond of caution, upon payment.’ The defender further alleged, That neither cautioner nor principal could be distressed for the sum, because he offered to prove, by the charger's oath, that the bond was granted to John Hume of Kello, or to his behoof, who was forfault, and so it fell to the King; likeas, Rentoun obtained discharge of it from the King. It was, answered, That the donatar to the forfaulture concurs with the charger, whose gift was anterior to the King's discharge, and which gift required no declarator, being a forfaulture in Parliament. ‘The Lords repelled the defence, in respect of the answer’ The defender further alleged, That he produced a letter from the King to his Commissioner, recorded in Parliament in favours of Rentoun, bearing, “That the King knew that Rentoun was damnified by suffering for his father, in obedience of his Royal commands in L. 800 Sterling, and that he had promised to see him satisfied,” and that this King conceived himself obliged to see his father's promise made effectual in the way he promised, to wit, to cause the Parliament take an effectual course to satisfy Rentoun; and therefore the King did recommend it to his Commissioner; that course might be taken in the Parliament for Rentoun's satisfaction, which letter is before the King's gift of forfaulture, whereby the King acknowledged himself debtor in a liquid sum to Rentoun, which therefore founds a compensation Against the donatar, who is the King's assignee. It was answered, That the letter doth neither instruct that the King's father, nor himself, were personally debtors to Rentoun, obliging themselves to pay; but only to interpose that the Parliament might take course.

The Lords found, that the letter did not make the King personally debtor. and therefore repelled the compensation.

Stair, v. 2. p. 827.