Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Smith
v.
- , Cautioner

Date: 8 July 1626

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One called ——, who was acted cautioner in the convention of burghs, for one who was admitted their factor in the Low Countries, that he should do his duty faithfully to all the merchants who should employ him in their affairs in merchandise, according to the order observed in the like cases: this cautioner being pursued by a merchant called —— Smith, for payment to him of the prices of certain wares sent by the said Smith to the said factor, to be sold to his use, and whereof he had made no satisfaction,—the Lords found that they would grant no process against the cautioner for the said factor, until the said factor had been discussed first, and that sentence were recovered against him, finding him debtor in a particular sum, and so that thereby he had failed against the obligement whereto he was bound when he was admitted factor, and for the which he had found the foresaid caution; for, the cautioner being only generally bound that the factor should discharge an honest and faithful duty, could not be specially pursued till sentence were recovered against the factor, constituting him special debtor to the pursuer. Which was so found by the Lords; albeit the pursuer replied, that he had in effect discussed the said factor, in respect he produced two of his own missive letters, written to the pursuer, wherein he confessed that he had received so many wares from him as extended to the prices now claimed by the pursuer; likeas he confessed, in the same letters, that he was not then able to give him satisfaction. Which reply was not sustained.

Act. Burnet, major. Alt. ——. Scot, Clerk.

Vid. 10th December 1623, what is noted there.

Page 211.