Scottish Court of Session Decisions

Subject_1 CAUTIONER.
Subject_2 SECT. IX.

Attester of a Cautioner in Suspension.

James Ramsay, and Daniel Reid his Assignee,
v.
David Spalding of Ashintully

Date: 19 July 1710
Case No. No 85.

A person who, before the act of sederunt rendering attesters of cautioners in suspensions liable for the sufficiency of such cautioners, had attested the sufficiency of a cautioner, sad obliged himself for the same, was not found liable for the sufficiency, but only for the reputed solvency of the cautioner at the time of attestation.

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John Stewart of Clockfoldich having enacted himself cautioner for Joseph Watson, in the suspension of a charge against him at the instance of James Ramsay; and the charger having obtained a decreet finding the letters orderly proceeded, and discussed the cautioner; he pursued David Spalding, who had (before the late act of sederunt concerning attesters) attested his sufficiency, and obliged him, his heirs and executors, for the same.

Alleged for the defender: He ought to be assoilzied, because the cautioner was habit and repute solvent at the time of his attestation, which imported no more; and did not oblige the attesters for the cautioner's future and eventual insolvency; seeing attesters are taken for the security of the clerks of the bills, when doubtful of the sufficiency of offered cautioners, that they, if found liable in subsidiary actions, may recur against the attesters for relief. And as it would be a good defence for these clerks, that the cautioner was held and reputed solvent when they received him; so the attester can be no farther liable, December 17. 1667, Paterson contra Homes, No 83. p. 2159.

Replied for the pursuer: The Lords repelled such a defence made for an attester, December 16. 1698, Sir Donald Bayne contra Sir John Dempster, No 84. p. 2160.; but whatever a simple attestation, which is the case of the decision 1667, might be understood to import, yet the defender's attesting the sufficiency of Clockfoldich, and obliging him and his for the same, must be understood cum effectu, to make him liable subsidiarie for the cautioner's real, and not putative solvency, in the same manner as the cautioner was liable for the principal debtor.

Duplied for the defender: These words in the attestation, “and I oblige me for the same,” are only exegetic of the former part of the sentence, viz. That the cautioner was sufficient at the time. And the late act of sederunt providing, that attesters in time coming should be liable as cautioners, implies, that these were not liable in that manner before.

The Lords found the defender's attestation doth not oblige him for the sufficiency of the cautioner simply, but only for his sufficiency at the time of the attestation.

Fol. Dic. v. 1. p. 130. Forbes, p. 424. *** Fountainhall reports the same case:

July 20.—Joseph Watson being debtor to Ramsay in L. 4000 Scots or thereby, and being charged, he suspends and finds one Stuart of Clochfoldish cautioner; but the clerks suspecting him, required an attester, whereon Spalding of Auchintully attested him. The principal debtor being imprisoned, and failing, Stuart the cautioner is discussed by horning, caption and adjudication, so there is a subsidiary action raised by Ramsay against Auchintully, the attester, for payment; for whom it was alleged, the import of his attestation was only that the cautioner was habite and repute solvent at the time of his cautionry, which he offers to prove; and as this would liberate the clerk of the bills, if pursued, it must likewise assoilzie him, as was found 17th December 1687, Paterson contra Homes, No 83. p. 2159.; and he can never be answerable for future and eventual insolvency; and, if this had not been our law, what was the need of making the act of sederunt 28th December 1709, that attesters shall be equally liable with cautioners in suspensions in suo ordine, which infallibly proves attesters were minus in obligatione before that act ? Answered, If the attestation had said no more but that he attested the cautioner's solvency and responsility, there might have been some pretence for this allegeance; but the style here went farther, viz. ‘and I oblige me and my heirs and executors for the same;’ which certainly imports an effectual obligement, that he should pay what could not be recovered of the cautioner after diligence. Next, the Lords have found holden and repute not sufficient, but burdened them to prove he was actually solvent the time of the attestation, as was decided 16th December 1698, Sir Donald Bayne against Dempster, No 84. p. 2160. Replied, These words ‘and I oblige myself for the same,’ are only an exegetic extension of the preceding clause, whereby he attested the cautioner to be sufficient, and can go no farther; and otherwise there had been no use for making the act of sederunt. The Lords by plurality found Auchintully the attester, no farther liable, than to prove that the cautioner was holden and repute solvent at the time of his attestation.

Fountainhall, v. 2. p. 589.