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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 WRIT.
Subject_3 Such cautionary obligations only valid in which the statutory solemnities have been observed.
Date: Sir Archibald Edmonstone, Bart
v.
William Lang
22 June 1786 Click here to view a pdf copy of this documet : PDF Copy
[Faculty Collection, IX. 427; Dict. 17,057.]
Braxfield. It is a settled point that a cautionary obligation is a literarum obligatio,
and must be executed by a perfect writing. The seeing the principal party in possession is nothing. Eskgrove. The acknowledgment of the writing is not sufficient in this case, although it might be in re mercatoria.
Monboddo. When a subscription is acknowledged in a writing which does not fall under the Act 1681, that constitutes a literarum obligatio. Besides, the cautioner, on seeing his son-in-law, the principal party, possessed of the subject, ought to have intimated to the factor that he would not be bound for him. A man may become bound by what he omits to do.
Swinton. In our law we have literarum obligationes and consensual contracts: the former are in matters of importance. A cautionary obligation is of that nature.
President. I also imagined this point to be settled: in re mercatoria such informal writings are permitted to have force, but not in other cases. In the case of Lenox of Woodhead, the ratio decidendi was, that the cautionary for 500 bolls of victual was in re mercatoria. There is no danger from a decision finding the cautioner not bound; on the contrary, this will make men more attentive to the regularity of their contracts.
Hailes. The factor has been exceedingly careless, and a legal advantage has been taken of him.
Rockville. Of the same opinion; and added, that the first offer was of two cautioners, and the factor ought to have had it adjusted whether one of the cautioners was willing to become bound by himself.
On the 22d June 1786, “The Lords assoilyied the defender;” altering the interlocutor of Lord Ankerville.
Act. William Craig. Alt. John Morthland. Diss. Justice-Clerk, Monboddo, Ankerville.
The electronic version of the text was provided by the Scottish Council of Law Reporting