A cautioner entitled to propone a defence which was sustained for the principal debtor, and he succumbed therein, the cautioner not having been called in the process.
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The Earl of Kinghorn pursues the Earl of Winton as heir to his goodsire, who was cautioner for the Earl of Marischal, in the contract of sale of the barony of Urie, sold by the Earl of Errol to Marischal; in which contract, Marischal and Winton were obliged to pay 2000 merks, as a part of the price to Mowat of Redcloak, whereunto Kinghorn hath now right. It was alleged for the Earl of Winton, That he had a competent defence, viz. that the sum was satisfied by Redcloak's intromission, or at least the lands sold were affected with a tack, the burden whereof was equivalent to the sum. It was replied for Kinghorn, That this defence was not competent, because payment being proponed against Mowat of Redcloak, an incident was used against Marischal, the principal debtor, whereby that allegeance being intimated to him, and he failing in probation, there was no necessity to intimate it to the cautioner, who runs the hazard with the principal.
The Lords found the cautioner might make use of this defence, seeing there was no intimation made to him, lest the negligence or collusion of the principal might prejudge the cautioner.
