Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
David Spence, Writer, v. David Donald of Shangie
Date: 17 January 1695
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The objection against the title was, That, being subscribed by two notaries, there were only three subscribing witnesses. Answered,—This was no nullity before the third Act of Parliament 1681; because, there were four witnesses inserted in the body of the writ, which was all then required by our law; subscription being only introduced for fixing the witnesses' memory, as appears by comparing 80th Act 1579 with third Act 1681. They had other two allegeances, but there was no need of determining them.
The first was, That the three witnesses were at least good for £100 Scots; but it was urged, the Lords had refused to restrict, in a late case in 1691, between Sir Robert Colt and Aikman.
The second was,—The cautioner subscribed for himself; so two witnesses were enough for him. To which it was answered,—If the principal obligation be null, the fidejussory must fall in consequence as an accessory. Replied,— Cautioners are all principals, et correi debendi, by our law; and so the cautioner's obligation may subsist without the other; as was lately found in John Callender's pursuit against George Alexander, brewer in Edinburgh. But, determining the first superseded the need of considering thir two last points.
