Scottish Court of Session Decisions

Subject_1 CAUTIONER.
Subject_2 SECT. IV.

Cautioner, how far Liable.

Sir Peter Fraser of Dooris
v.
Alexander Abercrombie, his Factor, and Abercrombie of Glassoch, his Cautioner

Date: 28 February 1708
Case No. No 26.

A cautioner for a factor who was a papist, was free with regard to all the factor's intromissions posterior to the act 3d Parl. 1700, declaring all papists incapable of any public office.

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Sir Peter Fraser of Dooris pursues Alexander Abercrombie, his factor, and Abercrombie of Glassoch, his cautioner, for count, reckoning, and payment of the rents of his estate. Alleged for Glassoch, the cautioner, absolvitor from any intromission had by the factor after the third act of Parl. 1700, declaring papists incapable of any public office, and particularly of being factors or chamberlains, because of the influence they might have to pervert tenants; and Mr Abercrombie being a Roman catholic, his commission ipso facto expired by that act, and consequently my cautionry obligation ceased therewith. Answered, Though ignorantia juris non excusat, yet I was out of the kingdom at the time of making the act, and for a long time after, so it came not to my knowledge so soon; yet the cautioner must stand bound (the factor being now broke) for all his intromissions and administrations, not only from the date of the act, and forty days thereafter, but for the last of the forty days after the publication and promulgation of the said act at the cross of Edinburgh; seeing, both by the Roman law and our acts of Parliament, laws do not bind till then; and the Lords found it behoved to be so counted. Then Sir Peter craved, that the cautioner might assign him to his bond of relief he had from the principal, which the Lords refused.

Fol. Dic. v. 1. p. 126. Fountainhall, v. 2. p. 439.