Scottish Court of Session Decisions

In 1819, on the application of the defender, Brownlee, and certain other persons, the Court appointed a factor loco tutoris to James M'Laren, Brownlee's stepson, then about twenty-four years of age, on the ground of alleged weakness of mind, as certified by medical certificates. In March, 1832, Brownlee having negotiated a transaction with the Yorkshire Fire and Life Insurance Company, whereby, in consideration of £600 paid down to him, they were to be secured in an annuity of £100 for eleven years, or till his death, should that event sooner occur, obtained the pursuer, Spence, together with M'Laren, and three other obligants, to sign the bond of annuity alongst with him, these parties being truly cautioners for him therein. In security of this cautionary obligation, Brownlee at the same time granted them an heritable bond over certain property belonging to him, which was not alleged to have since fallen in value. The annuity had been regularly paid by Brownlee; but in 1834, Spence raised the present action, the summons in which concluded that Brownlee should be ordained to “free and relieve the pursuer from the foresaid bond, and whole obligations therein contained, and failing his doing so, to make payment to the pursuer of the sum of £600 sterling, or such other sum, more or less, as shall be found to be requisite to enable the pursuer to purchase a government, or an equally well-secured annuity, to the amount of £100 sterling per annum for the unexpired years and terms under the foresaid bond of annuity to the said Yorkshire Fire and Life Assurance Company; and also to discharge and pay any arrears of annuity, penalty, or expenses which may be due under the said bond, and any damages and expenses that may be incurred by the pursuer thereanent.”

This action was founded mainly on the averment that M'Laren was in a state of mental imbecility when he signed the bond, so as to be incapable of legally binding himself, and that this had been concealed from the pursuer, who alleged, that except on the faith of M'Laren's being effectually bound alongst with him, he would not have concurred in the bond. With reference to this matter, however, it appeared, that although at the date of the bond, the factory had not been recalled, M'Laren had for some time been in the management of his own affairs; that Spence was quite aware of the factory having been granted; that a considerable time before the bond was entered into, he had assigned certain claims to M'Laren as a trustee for him, and had raised action on them in M'Laren's name, and that, in a pleading given in by him in that process, four months before the date of the bond, a statement in defence founded on M'Laren's alleged incapacity was denied, and an averment made that he was in the habit of transacting business every day. In addition to this, the factory, subsequent to the raising of the action, was recalled on medical certificates of M'Laren being now entirely restored, and he had executed a corroboration of the annuity bond to the insurance company.

In these circumstances, Brownlee pleaded that there was no foundation whatever for the demand for relief; and, besides, that without a reduction, it was incompetent for a cautioner in an obligation for a tract of time, to demand a total relief from the principal, where no alteration of circumstances had taken place, and especially where no averment was made that the principal was vergens ad inopiam.

The Lord Ordinary pronounced this interlocutor, adding the subjoined note: ^*—“ In respect that it is admitted that the factory of M'Laren