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Scottish Court of Session Decisions >>
Mr Patrick Strachan v David Forbes. [1714] Mor 3583 (17 June 1714)
URL: http://www.bailii.org/scot/cases/ScotCS/1714/Mor0903583-037.html Cite as:
[1714] Mor 3583
Cautioners for Factors, Collectors, Executors, Suspenders.
Mr Patrick Strachan v. David Forbes
Date: 17 June 1714 Case No. No 37.
A cautioner in a suspension, after the letters are found orderly proceeded, may be charged summarily upon the bond of caution, without discussing the principal debtor.
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Mr Patrick Strachan being charged upon a bond of cautionry in a suspension, after the letters had been found orderly proceeded, he offers a bill of suspension on this reason, that he being a cautioner in a suspension he has beneficium ordinis, and the principal having an estate which can be condescended upon, the same ought to be discussed; for albeit charges do ordinarily proceed against cautioners in a suspension, without discussing the principal, yet it cannot be instanced, where ever it was found that a cautioner had not beneficium ordinis, which the law provides to all cautioners where it is not renounced.
It was answered, 1mo, By the common custom charges do proceed against cautioners in a suspension so soon as the letters are found orderly proceeded; and though there were no decision to support the practice, yet constant custom and acquiescence of parties is sufficient, there being no decision in the contrary; and if this were sustained, the same would hold in the case of cautioners judicatum solvi, which is regularly exacted before the Admiralty, and in many courts of justice abroad. But this allegeance has been repelled in a stronger case, Hume contra Hume, No 69. p. 2142. where the attester of a cautioner in a second suspension alleged, that he was not convenable till the cautioner in a first suspension was discussed, which the Lords repelled.
2do, A cautioner in a suspension is not properly a cautioner in the sense of law, bound with and for the principal debtor, which is reckoned a subsidiary security, but he is adpromissor, and interposed as accessory to the principal obligation, and by the stile, the suspender ought to be bound to relieve him, so that at the passing of the suspension he is reckoned as a principal obliged to pay what shall be found due at discussing.
‘The Lords refused the bill of suspension.’
Fol. Dic. v. 1. p. 249. Dalrymple, No 105. p. 148.*** Forbes reports the same case
Mr Patrick Strachan being cautioner for Charles Menzies writer to the signet, in the suspension of a charge against him at the instance of David Forbes, for payment of a debt owing to him by the Lady Gight as principal, and the said Charles Menzies as cautioner; and the letters being found orderly proceeded, Mr Strachan the cautioner was charged with horning to pay, who offered a bill of suspension upon this ground, that he ought not to be distressed till the principals and their effects be discussed.
To which it was answered; Though a cautioner directly for the payment of a debt be liable only subsidiarie; yet a cautioner in a suspension, where the main question is about the legality of the charge given by the creditor, whether the person charged is truly debtor or not, stands conditionally bound as debtor for the sum, and precisely liable in payment as correus debendi to the creditor in the event of discussing the suspension, albeit quoad the debtor he is only cautioner because of his obligement of relief.
The Lords unanimously refused the desire of the bill.
