Uchtred M'Dougal, Merchant, v. Maxwell, Younger of Monreith
Date: 5 July 1706 Case No. No 74.
A minor suspended on the head of minority. Before discussion, he became major, and granted a bond of corroboration. The cautioner was not affected by this, but was liberated.
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This Monreith having taken off sundry suits of apparel, and other furniture, from M'Dougal, and given bond for it, he raises a reduction and suspension thereof on minority and lesion.—Answered, No lesion, because furnished to you for necessaries, and so in rem et utilitatem tuam conversum.—Replied, Offers to prove, that his father caused furnish him sufficiently with cloaths, by Bailie Blackwood, another merchant; so the account on which M'Dougal's bond is founded was not in rem versum, but most exorbitant; and after a few days wearing, he gave them away to his comrades. A probation being allowed of these points before answer, at advising the charger craved decreet, in regard the minor had now acknowledged and homolgated the debt, by giving a bond of corroboration after his majority.—Answered, Whatever this ratification may operate against Monreith younger, the principal debtor, yet it can never bind the cautioner in the suspension, because I became bound on the faith of a reason of suspension, which I knew both to be relevant and true, viz. that he was minor, and lesed when he gave that bond; and this being proven, any emergent reply arising upon the minor's giving a new bond of corroboration after majority, which was not in rerum natura, when I engaged for him, can never bind me. See Spottiswood's Practicks, p. 325, voce Suspension, where a cautioner in a suspension was freed on this head, No 68. p. 2142.—Alleged, That a cautioner for a minor stands bound, though the principal escape free; and his bond of cautionry obliges him to fulfil whatever the Lords shall find the suspender bound to perform, and not as it stood at the time of the suspension; and though he was minor and lesed at the time, yet that cannot be reputed a good defence, because it is now elided by as relevant a reply, that he has ratified the debt; and Dynus, ad l. 60. de reg. juris canonice, tells us, illa sola est justa exceptio quæ ope replicationis nequit elidi.—Replied, If a suspended decreet be turned into a libel, the cautioner in the suspension is undoubtedly freed, et multo magis here, when a relevant reason of suspension is only elided by a supervenient reply; and Sande, decis. Frisce lib. 3. tit. 10. def. 3. gives us their decision, that fidejussor pro judicata solvendo datus liberatur, si principalis ob actionem male propositam sit absolutus, licet postea mutata actionis genere, idem reus in alia instantia fuerit accusatus et condemnatus.——The Lords found the cautioner in the suspension free, seeing the principal was overtaken by his own deed of ratification subsequent to the suspension, which could not prejudge the cautioner, who was in bona fide to engage for him. Then M'Dougal the charger alleged the cautioner must still be liable, because the reason of suspension was not proven, viz. his lesion, in so far as it was alleged, that he was furnished aliunde, and Sir Robert Blackwood's account produced did indeed prove his furnishing to Sir William Maxwell elder, and his family; but few or none of these articles concerned this suspender; in respect whereof, the Lords found the cautioner still liable, seeing their reason of suspension founded on lesion was not proven.
Fol. Dic. v. 1. p. 128. Fountainhall, v. 2. p. 341.
