Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

George Bain's Heirs
v.
Alexander Young

Date: 23 February 1703

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Patrick Suity being established a factor at Campvere, by the royal boroughs, he found Alexander Young, merchant in Edinburgh, his cautioner. George Bain, merchant there, did send over some parcels of goods to the said Patrick, to the value of 2500 merks; and having received no account of the product from the factor, the said George's heirs pursue Alexander Young the cautioner, for count, reckoning, and payment; who alleged, 1mo. That a great part of the goods sent was tallow, for which the cautioner can never be liable, because the export thereof is prohibited by the 12th Act 1621; and he being his cautioner, in his public character and capacity, it can never extend to what he acted unwarrantably and illegally, for wrong can have no warrant; and the meaning of his bond of cautionary could only make him liable for staple goods transported, and not for what stands prohibited by express law, though merchants venture on such prohibitions on the prospect of gain; and cautioners cannot be judges, nor known to all the goods they export.

Answered,—1mo. That act is plainly in desuetude, as appears by the 37th Act 1661, where the exporter of tallow is obliged to bring home bullion; 2do. In the book of rates there is an imposition upon exported tallow, which is an evident dispensation with its export.

The Lords repelled the cautioner's allegeance, in respect of the answer.

Then, 2do. He alleged,—That the said Patrick, the factor, was recalled and discharged by the boroughs from his office in July 1675, at which time most of these goods now pursued for were in his hands unsold, and so the cautioner cannot be countable therefore; because, from the date and period of his being ex-auctorate, the bond of cautionary fell and ceased, it enduring no longer than the boroughs trusted him in that office.

Answered,—It was not the sale and disposal of the goods that made the cautioner liable, but the time of his receipt of the same, at which time it is not pretended he was discharged; and in all thir cases initium est spectandum: and it were ridiculous for a cautioner, for a tutor, curator, or chamberlain, to pretend he is free, because, though he intromitted with the victual during the standing of the office, yet he had not sold it till his office was ended; even so here.

Replied,—He wrote to some other merchants there, to secure his goods when he heard Patrick Suity was put off; which was an evidence he looked on the cautioner as free.

Duplied,—Whatever prudential caution he used to secure the goods, it can never liberate you; but, as a cumulative security, it was a favour done to the cautioner.

The Lords likewise repelled this second allegeance, and decerned against Young the cautioner.

Vol. II. Page 181.