Scottish Court of Session Decisions

Subject_1 CAUTIONER.

Magdalen Scott, Daughter to Scott of Milleny,
v.
Dame Elizabeth Nicholson

Date: 29 June 1751
Case No. No. 20.

Cautioner in a confirmed testament.

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A father, as administrator in law to his daughter, having confirmed her executrix and found caution, wherein he in common form obliged him and his daughter to relieve the cautioner, and the Commissaries gave him as upgiver powerto intromit; he accordingly uplifted the debt confirmed; and after his death the daughter sued the cautioner to account for the money; and his defence was, that he was not bound to her for her father, but was bound for both father and daughter to all others having interest, and she was bound to relieve him; but upon the authority of Hope's minor practices in point, and also upon the reason of the thing, we repelled the defence unanimously. Afterwards adhered. Thereafter the defender alleged that the daughter had accepted of a bond of provision of 2500 merks in full of portion natural, and of all that she could claim of him any manner of way. Answered, That he was no more than an heir of a strict entail exercising a faculty given him by the entail, and it could not be meant in satisfaction of this claim, which was truly of more value. 2dly, The general words could only be intended of claims of the same nature with the portion natural; but the Court unanimously sustained the defence and assoilzied. Other new defences were also proponed, but as they seemed attended with some difficulty, the Court did not decide them. (See Dict. No. 15. p. 2080.)