The cautioner in a suspension is not liberated by the death of the suspender during the dependence.
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The act of sederunt 1650 finds and declares, “That all cautioners in suspensions hereafter shall be obliged and liable, as validly and effectually as the suspenders are, notwithstanding the charger or suspender shall decease before the discussing of the suspension. And for this effect the Lords ordain, That all bonds and acts of caution, to be taken and received in suspensions hereafter, shall bear this clause, obliging the cautioner, his heirs and executors, for payment of the sums or doing of the deeds to the charger, as validly and in the same manner, as the suspender, his heirs and executors, are obliged themselves.” The form of the bond of cautionry appointed by this act came to be neglected; and of late years bonds of cautionry in suspensions have been conceived in the following terms:
“That the cautioner shall pay to the charger the sum contained in the decreet, in case it be found, after discussing of the suspension, that the suspender ought to pay the same.”
Alexander Hall, who had suspended a decree for L. 63 Sterling, recovered against him by Agnes Dickie in the inferior court, having died during the dependence of the suspension, his cautioners Thomson and Lang insisted, that they were free; since, by the terms of their bond of cautionry, they are only liable to pay what shall be decerned against Alexander Hall personally, and that now, after his death, there can be no such decerniture against him.
‘The Court notwithstanding found them liable in terms of the act of sederunt.’
Fol. Dic. v. 3. p. 121. Rem. Dec. v. 2. No 48. p. 76.
