In what cases a Cautioner may remain Bound, where the Principal gets Free.
The Earl of Kinghorn v. Robert Cleland
Date: 6 February 1672 Case No. No 7.
A cautioner in a suspension being minor, but attested to be sufficient, the attestor was found liable for the debt, he knowing that the cautioner was minor, and would be freed ex capite minorennitatis.
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Robert Cleland having attested a cautioner in a suspension raised against the Earl of Kinghorn, in these words; ‘that the raiser of the suspension was worth the sum charged for, for which he did oblige himself;’ the suspension being discussed in favours of the Earl; and the cautioner, who was one William Sinclair, having reduced his bond upon minority and lesion, the Earl did pursue Cleland as attestor in the terms foresaid. It was alleged for the defender, That the attestation could import no more but that the cautioner had an estate worth the sum charged for; but could not bind him, in case, upon minority, he should free himself of that bond. It was replied, That the clerk of the bills having warrant to receive cautioners, where they are attested by responsal men, whatever damage the creditors suffer by the attestation, whether as to the insufficiency of the estate of the cautioner, or the inability of his person to bind himself, the attestor ought to be liable. The Lords ordained Cleland to give his oath if he knew that the cautioner was minor the time of the attestation; and that, notwithstanding, he might free himself upon minority, yet did attest him sufficient; quo casu, the attestor being in passimo dolo they found him liable.
