Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 6 January 1681
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In an action for payment against a cautioner in a suspension, he alleged absolvitor; because, the principal not having subscribed the Act for his relief, he being only an accessory, (qui sublato principali tollitur,) he could not be tied.
The Lords found him obliged, seeing it was on his own peril that he did not look to his relief. Yet, negotiorum gestorum actione, he may seek it.
This, being a judicial enacting, differs from the case of a cautioner in a bond, anent whom it may be questioned, if he be obliged where the principal does not subscribe; for, though they be correi debendi, and each of them bound for the whole conjunctly and severally, yet it may be said to be only a renunciation of the beneficium ordinis et discussionis in order to ready access and execution against either, but not to be a renunciation of the pendency of the obligation itself, in suspenso, till the principal sign it. See 27th July 1671, and Haddington's Index, voce Caution, n. 10, where the cautioner is freed, the principal not subscribing; and Stair is of the same mind, tit. 3, in fine.
