In what cases a Cautioner may remain Bound, where the Principal gets Free.
John Nimmo v. Sir George Brown
Date: 2 February 1700 Case No. No 8.
A cautioner was found liable, altho' the bond fell under the statutable nullity of being subscribed by but one witness.
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Doctor Hepburn having granted bond to John Nimmo for a sum of money, and Sir George Brown of Colston being cautioner therein; the Doctor retiring to England, Sir George is charged for the debt; who suspends on this reason, that the principal's obligation was null, being only subscribed by one witness, and consequently the cautioner must be liberate, quia sublato principali fundamento corruit accessorium, and he can have no recourse nor relief against the principal. Answered, The nullity objected was only statutory by the act of Parliament 1681, before which the inserting of witnesses names was sufficient, without subscription; and wherever a natural obligation takes place, there a cautioner stands bound, whereof the law gives several instances; as where one engages cautioner for a wife, though it be null quoad her, yet the cautioner stands bound, 28th November 1623, Shaw contra Maxwell, No 5. p. 2074.; or if one binds with a minor, he has not the minor's privilege of restitution; or where one notar signs a bond for a sum above L. 100, though it be null as to the principal quoad the excrescing sum, yet the cautioner will be liable in the whole, as was found 8th July 1680, Sophia Johnston contra the Laird of Romano, No 9. infra; and the reason is, quia subest debitum naturale cui fidejussor accedere potest; especially seeing Colston cannot, on his oath of calumny, deny in this case, but he saw the principal subscribe, at least that it is his hand-writ. The Lords repelled the reason of suspension, and found the cautioner liable.
Fol. Dic. v. 1. p. 124. Fountainhall, v. 2. p. 86.
*** In the Fol. Dic. this case is called Hepburn against Nimmo.
