Scottish Court of Session Decisions

Subject_1 CAUTIONER.
Subject_2 SECT. IV.

Cautioner, how far Liable.

The University of Glasgow,
v.
Sir William Miller and Mrs Janet Stirling

Date: 18 November 1790
Case No. No 33.

A cautionary obligation does not fall by the cautioner's death, but continues upon his heirs.

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Alexander Stirling and William Miller, along with the Earl of Selkirk, who, as mentioned in the preceding report, interposed as cautioners in behalf of a factor for the University of Glasgow, “Bound and obliged themselves, conjunctly and severally, their heirs, executors, and successors, that the factor should make payment to the University, of his whole intromissions with the rents of its estate.”

Upon a final settlement of accounts, a balance arose against the factor; but that debt was not incurred till after the deaths of Messrs Miller and Stirling. In the action instituted against their Representatives and the Earl of Selkirk, the surviving cautioner, the former, in defence,

Pleaded: The cautionary engagement ceased when the cautioners died. If any loss had then arisen, the obligation of relief would have been a debt that the deceased had owed, and of course would have been transmitted against their heirs; but no such debt could be transmitted, when none existed.

Had the obligation made no mention of heirs, it is not likely that the present claim would have been thought of; and yet if an effect altogether singular be not given to this circumstance, it cannot in the least vary the case. The sole import of the obligatory words respecting heirs uniformly is, to devolve on them the debt previously incurred by the ancestor; as, for instance, in the case of a bond for money lent, and in such a one as the present, if during the cautioner's life the failure against which he is surety has taken place. But those words never have the effect of creating a new obligation or debt against the heir, after that which lay on the ancestor has been extinguished.

Indeed, as all cautionary obligations are in their nature voluntary, it should seem, that they cannot be imposed on an heir without his consent.

Answered: In this case, the Representatives are expressly bound, as well as the cautioners themselves, The import of this obligation is best explained by the universal practice in similar instances; as, for example, that of messengers, the heirs of whose cautioners are always understood to continue bound. Nor does the case of banking-houses afford any real exception; for if, on the death of a cautioner for a cash-credit, it be their custom to require a new one, this is only for the sake of summary execution, which cannot take place against heirs.

‘The Lords repelled the defence pleaded for the Representatives of the deceased cautioners, of their not being liable for any intrommissions of the factor subsequent to the death of the said cautioners, and found the cautionary obligation to be equally effectual against them as the Earl of Selkirk, the only original cautioner now in life.’

A reclaiming petition against this judgment was refused without answers.

Reporter, Lord Swinton. Act. Rolland, Jo. Millar. Alt. Wight. Clerk, Menzies. Fac. Col. No 151. p. 302.