Bond by principal and cautioner good, though the testing clause be, “I have subscribed these presents.”
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The Lords have now in three several instances sustained a bond granted by a principal and cautioner, docqueted thus; “I have subscribed these presents before these witnesses,” &c. First on February 14, 1712, Orr against Wallace, infra, h. t. though the witnesses might, notwithstanding of what the docquet asserts, have only seen one of them subscribe, and no matter which as to the cautioner; and afterwards, January 15, 1734, Gilmour against Black, a bond by principal and cautioner, docqueted in the same manner, was sustained in respect of the former decision. And now of this date, the bond by Geddes younger of Esset as principal, and Geddes elder of Esset as cautioner, whereof mention is made, voce Creditors of a Defunct,: No. 8. p. 3128. was sustained, in respect of these two decisions, being docqueted thus, “I have written and subscribed these presents before these witnesses.”
Kilkerran, No. 14. p. 612.*** D. Falconer reports, this case:
In the cause between these parties, No. 8. p. 3128. it was further pleaded in a bill against the interlocutor 26th November, that it appeared by the bond, Andrew Geddes the son was principal debtor, and Archibald the father cautioner; Andrew owned he was resting owing, and he as principal, and with him his father as cautioner, bound and obliged themselves; and it was tested: thus, “I have written and subscribed these presents, before these witnesses;” so that Archibald the father's subscription was not attested.
At advising the bill and answers, observed on the Bench, That this precise objection had been repelled, 14th February, 1712, Orr against Wallace; and 15th January, 1734, Gilmour against the Representatives of Pollock.
The Lords repelled the objection.
Act. R. Craigie.Alt. H. Home.Clerk, Kirkpatrick.
D. Falconer, v. 2. No. 238. p. 322.
