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Hugh Wallace of Inglistoun, and John Baillie, Chirurgeon, v Mrs Margaret and Elizabeth Lauders, and Mr John Fairholm of Babertoun, Advocate, and John Cunninghame of Woodhall, their Husbands. [1707] Mor 2096 (20 February 1707)
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[1707] Mor 2096
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[1707] Mor 2096
Subject_1 CAUTIONER. Subject_2 SECT. IV.
Cautioner, how far Liable.
Hugh Wallace of Inglistoun, and John Baillie, Chirurgeon, v. Mrs Margaret and Elizabeth Lauders, and Mr John Fairholm of Babertoun, Advocate, and John Cunninghame of Woodhall, their Husbands
Date: 20 February 1707 Case No. No 25.
Found in conformity with the above.
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Hugh Wallace and John Baillie, assignees by the late tacksmen and managers of the customs, to a bond granted to them by Kenneth Urquhart, late collector of Aitoun as principal, Archibald Murray of Spot, and Sir George Lauder of Idingtoun as cautioners; that the said Kenneth should make just count, reckoning, and payment to them of his intromissions with the customs, excise, and bullion, and do all exact diligence for bringing in thereof monthly, quarterly, or oftner as he should be required; pursued Mrs Margaret and Elizabeth Lauders, and their husbands for their interests, as representing the said Sir George Lauder, for payment of the equal half of 3301 pound Scots, and annualrents thereof, wherein the said collector fell short in his accounts.
Alleged for the defenders: That the tacksmen not having done monthly or quarterly diligence against Kenneth Urquhart the principal in the terms of the obligement, the cautioners were free: As was decided betwixt Sir James Dick and the cautioners for the clerk of his brewery, No 23. p. 2090. For the defenders having engaged for the fidelity of a person in office, are like fidejussores indemnitatis, free if the creditor permit the principal debtor to become insolvent by his neglect. So the cautioners for a factor at Campvere were not found liable for effects sent to him, after he was known to be insolvent. See p. 2092.
Replied for the pursuers: The obligement by Kenneth Urquhart and his cautioners conjunctly and severally, was in favour of the tacksmen, whereby they might have compelled him and his cautioners to count and pay monthly, quarterly, and oftener if required; but did not oblige the tacksmen to that diligence, or free the cautioners for omission thereof; more than cautioners are free after the term of payment. There is no parity betwixt this, and Sir James Dick's case; for his clerk was precisely obliged to count to him quarterly, and he was obliged to take the clerk's accounts quarterly off his hand; which the cautioner required Sir James to do, and protested to be free for his not counting.
The Lords repelled the defence, in respect of the reply.
