An attester of a cautioner in a suspension may be summarily charged with horning upon his obligation.
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John Gillespie drover in Abington, having obtained decreet before the Sheriff of Edinburgh, against John Croll flesher there; it was suspended, and George Lesly indweller in Edinburgh became cautioner, who was attested by Andrew Main taylor there, in these words, being the ordinary style of attestations, “I do hereby not only attest the sufficiency of the within designed cautioner, but likewise bind and oblige me, my heirs, and executors, as cautioners for him, and for payment of the within sums of money, as fully in all respects as the cautioner himself, except as to the order of discussing; and consent thir presents be registrate with the within bond, that all execution pass thereon subsidiarie accordingly.”
A bill of horning was presented against the attester, upon production of a registrate horning and denunciation against the suspender and cautioner; and the matter being reported, because the writers to the signet doubted whether an attester could be summarily charged with horning, they thinking that he was only liable to a process.
The Lords directed the Lord Ordinary to pass the bill.
Fol. Dic. v. 3. p. 122. D. Falconer, v. 1. No 194. p. 259.
