In what cases a Cautioner may remain Bound, where the Principal gets Free.
Rollock, Finlay'S Relict v. Corsbies
Date: 20 November 1627 Case No. No 6.
A cautioner was found liable, who had bound himself in an act of curatory, though the act of curatory was informal; but the party meant to be curator had intromitted.
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In an action moved by Jean Rollock, as executrix to umquhile Patrick Finlay, her husband, against Corsbies, as executors to umquhile Corsbie their father, who was cautioner for Walter Finlay, curator to the said umquhile Patrick, de fideli administratione, for payment to her of 400 merks received by the said Walter, curator foresaid, for his said pupil: The Lords sustained this process and action against the executors of the cautioner, albeit it was alleged, that in this case of cautionry for curators, the Lords are not in use to sustain process against the cautioner, until the curators' selves be fully discust, both in their persons, goods, and lands, and till that be fully done, the cautioner cannot be convened; which allegeance was repelled, and the process sustained against the cautioner's executors; but the Lords declared, that they would give no execution against the cautioner's executors, until the said curator was fully discussed. This seems contrary to the Lords practique, as it is marked Dec. 9. 1623, at the Nota, anent cautioners. See Henderson's Bairns against Debtors, Durie, p. 88, voce Foreign.
December 5. 1627.—In an action betwixt Rollock and Corsbies, whereof mention is made 20th November 1627; the defenders alleging, that they nor their father could not be convened as cautioners for the curator by this act produced; because, before this act of curatory, there was another act of curatory whereby the minor had chosen curators, who had accepted and given curators to him; which act standing, there could no new curators thereafter be lawfully chosen, until the first had been removed, or that act lawfully taken away, as is statute 35th act, 6 Parl. Q. Mary anno 1555.; and therefore, the second act was null, and consequently the cautioner for the curator in the second act could not be convened: This exception, albeit verified instanter, was repelled, and the action sustained against the cautioner in the second act, which the Lords found could not be impugned by the cautioner, being his own deed, and that he nor his executors could not oppone against the same. But the Lords reserved action to reduce upon that ground prout de jure. It is always to be remembered, that the cautioner was convened here, for payment of a particular sum intromitted with by that second chosen curator, whereof reason craved, that he should make payment to the minor, being his intromission; and the cautioner was not convened for the curators omission; in which case, the matter would have been more considerable.
Act. M'Gill.Alt. ——.Clerk, Hay.
Fol. Dic. v. 1. p. 124. Durie, p. 314. & 317.
