Scottish Court of Session Decisions

Subject_1 CAUTIONER.
Subject_2 SECT. II.

In what cases a Cautioner may remain Bound, where the Principal gets Free.

Johnstoun
v.
The Laird of Romano

Date: 8 July 1680
Case No. No 9.

A cautioner, bound as full debtor with the principal, found liable for the whole sum, though the principal was freed by a legal exception, one notary only having subscribed for him.

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Sophia Johnstoun, as executrix to her father, pursues Romano, as representing his father, who was cautioner in a bond of L. 130 for Adam Smith, in September anno 1638. The defender alleged, That the principal party had subscribed only by one notary, and therefore the bond would only be effectual against him for L. 100, and so could not be further extended against the cautioner, who could get no more relief, and specially in so favourable a case against a cautioner, upon an old debt, within a few days of prescription. It was answered, That here the cautioner is bound as full debtor conjunctly and severally, and both he and the principal are bound for the same sum, although different solemnities are required in their subscriptions, the cautioner having subscribed with his own hand, and the principal requiring notaries, so that the cautioner is not bound in majus, but is bound magis, as cautioners for wives, pupils, and minors, who are bound as full debtors, though the principal will be free; and the favourableness of the case doth not alter the point of right.

The Lords repelled the defence, and found the cautioner liable for the whole.

Fol. Dic. v. 1. p. 124. Stair, v. 2. p. 784.