A suspended decree being turned into a libel, and a day assigned to the suspender to depone upon the verity of the debt, and upon his failing to depone, the letters being found orderly proceeded; the cautioner in the suspension was found liable to pay the debt.
In this case, the cautioner not having been expressly bound in the bond of caution for expenses, was found not liable for them; but an act of sederunt was made to regulate that matter in future.
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Alexander Jack, one of the Queen's life-guard, being debtor to Alexander Dunbar, taylor in the Canongate, in L. 101 Scots, for cloaths and furnishings, he pursues him before the Bailies of Edinburgh, where he compeared, and objected against the account as exorbitant; and tradesmen being named to cognosce and report, the Bailies modified the account to L. 95 Scots; which decreet being suspended by Jack, he found Robert Muirhead merchant in Edinburgh cautioner in the suspension; and their being a decreet, finding the letters orderly proceeded against Jack, the principal Muirhead is charged on his bond of cautionry, who suspends on this reason, That the cause having come in before the late Lord Register, he had turned the Bailies decreet into a libel, which, by frequent decisions, liberates the cautioner, who is only bound to answer for the validity of the decreet charged on; and if that be found null, then he is free: And esto the letters were orderly proceeded afterwards by Jack's collusion, or negligence, Muirhead the cautioner was not bound to notice what passed afterwards; for the first interlocutor turning the decreet into a libel sufficiently secured him, as not only appears by Lord Stair's Institut. b. 1. tit. 17. § 7. bearing, where a decreet suspended is turned into a libel, it imports liberation to the cautioner; but has been so decided in foreign supreme judicatories, and particularly in Friesland, Sande decis. b. 3. tit. 10. def. 3.—Answered, It is not a single interlocutor that liberates a cautioner in a suspension, but he must wait the last finishing act of the process; which, if it be a split new decreet, without regard to the former, the cautioner may plead some exemption, (though that be more a subtilty than solid reason) yet if the superstructure be on the former decreet, and the letters be found orderly proceeded, then posterior a derogant prioribus, and the cautioner stands unquestionably bound; and though he pleads a jus quæsitum by the first interlocutor, yet in Lucan's words nil credas actum dum quid et restat agendum, so the last consummates all, and to that he must stand.——The Lords found the cautioner in the suspension still bound and liable, and repelled the reasons.
Fol. Dic. v. 1. p. 129. Fountainhall, v. 2. p. 531.*** The same case is reported by Forbes:
Robert Muirhead being cautioner in a suspension of a decreet obtained by Alexander Dunbar before the Bailies of Edinburgh, against Alexander Jack, one of the gentlemen of the horse-guards, for a taylor-account, which was turned into a libel, and a day allowed to Jack to depone upon the verity of the account; and the Lords having not only found the letters orderly proceeded for the sums charged for, but also modified L. 60 Scots of expenses upon his failing to depone, Alexander Dunbar extracted the decreet of suspension, and the bond of cautionry, and thereupon charged Robert Muirhead the cautioner for the sums contained in the Bailies' decreet. He suspended upon this reason, That he being only bound for Jack, in case the letters were found orderly proceeded on the Bailies decreet, and that decreet being turned into a libel, which was admitted to probation, he, the cautioner, was ipso facto sufficiently liberated, and not bound to notice what might afterwards follow, perhaps through collusion betwixt the charger and suspender.
Answered for the charger: By the style of bonds of cautionry in suspensions, the cautioner is bound to pay, in case it shall be found by the Lords, that the principal ought so to do; consequently, though the ground of a charge be turned into a libel, the cautioner is liable for the sum in the charge, if the suspender be decerned to pay the same.
The Lords repelled the reasons of suspension, and found the letters orderly proceeded.
Thereafter, 17th December 1709, Alexander Dunbar having charged Robert Muirhead, for the sum of L. 60 of expenses modified in the decreet of suspension obtained against Alexander Jack, he suspended upon this ground, That the charge was unwarrantable, in so far as he by his bond of cautionry was only bound to pay the sum in the Bailies decreet, in case it were found by the Lords that Jack ought to do the same, and therefore was not liable for the expenses modified at disussing the suspension; and bonds of cautionry being stricti juris, can never be extended beyond what the natural import of the words will bear, l. 68. § 1. ff. de Fidejuss. l. 99. ff. de Verb. Signif. Therefore the Lords, by an act of sederunt in November 1613, (observed by Spottiswood, tit. Suspensions,) ordained, cautioners in suspensions, to enact themselves not only for the sum in the charge, but also for re-funding the charger such expenses as should be modified at discussing the suspension: Whence it is clear, that they thought a cautioner, obliging himself only for the sum charged for, not liable for any subsequent modification of expenses.
Answered for the charger: Seeing accessorium sequitur naturam sui principalis, the damages arising to the creditor by the deed of the principal debtor oblige the cautioner, l. 58. § 1. ff. de Fidejuss. l. 24. § 1. ff. de Usuris. The laws cited for the suspender concern only voluntary stipulations betwixt the creditor and cautioner: And there is a great difference betwixt a cautioner in a conventional obligation, and a cautioner in a suspension, who doth not formally contract with the creditor, but by authority of the Lords enacts himself as cautioner, and ex natura negotii, is understood to be bound for whatever shall be decerned against the principal debtor: So that it is not arbitrary to the clerks of the bills, or to cautioners, to limit the extent of such bonds, but they must be understood in the terms of law, without respect the style; as law and custom, without respect to mere style, do regulate the import of inhibitions, interdictions, and gifts of Exchequer.
The Lords sustained the reason of suspension as to the expenses, and assoilzied the suspender from payment thereof, in respect he was not expressly bound for the same by his bond, and found the charge unwarrantable: But recommended to the Committee of the Lords appointed tor regulating abuses, to draw a formula of a bond of cautionry in suspension, according to the act of Sederunt 1613, (observed by Spottiswood, voce Suspension) to be the rule in time coming.
