Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Scot
v.
Scot of Thirlstoun

Date: 22 February 1670

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Sir Francis Scot of Thirlstoun being pursued, as heir to his father, for payment of 1000 merks, upon this ground, That his father, to whom he was heir, did attest a cautioner in a suspension, who was altogether insufficient, and is now bankrupt: It was alleged for the defender, That the cautioner was tentus et reputatus, sufficient and responsible for the time; in so far, that he offered to prove that he had a room stocked with his own goods, which paid 600 merks of tack-duty.

To this it was replied, That the defender's father, who did attest the cautioner, could not but know that he was insufficient; because he was his own chamberlain, or officer; and was debtor to him in considerable sums of money, near the worth of the goods he had in stock.

The Lords did sustain the reply to elide the defence; albeit it is sufficient to liberate the attestor, to condescend that the cautioner whom he attests has a visible estate: but here the knowledge of the debts did make a specialty.

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