Scottish Court of Session Decisions

This is a question as to the construction of a cautionary obligation. It arises in the following circumstances:—In 1861 the company of William Anderson, Son, & Clark, of St Vincent Street, Glasgow, obtained from the Union Bank a cash credit upon a current account to the amount of £3000, upon their granting a bond along with several co-obligants. The said company, and the individual partners of it, Mr James Gemmell, Glasgow; Mr James Munn, Glasgow; and Clark, Grierson, & Co., Argyle Street. Glasgow, as a company; and Robert Bland Clark, and William Grierson, the individual partners of the company, all bound and obliged themselves as full debtors and co-obligants to pay to the bank whatever might be found owing by the firm of William Anderson, Son, & Clark. This firm became bankrupt in 1861, and at that time there was due by them to the bank, in respect of their operations on the cash credit, a sum of £2790, 6s. 3d. of principal, besides interest on the current account. After the insolvency various payments were made by several of the co-obligants in implement of their obligation. Among other payments some were made from time to time by the pursuer, who is judicial factor on the estate of Mr Munn, now dead, one of the co-obligants, and an action is now brought by him to determine what are the several obligations of the parties. The question which truly arises is whether Robert Bland Clark and William Grierson signed merely as partners of Clark, Grierson, & Co., and in corroboration of the company signature, or added their individual obligations to that of the company. The pursuer, on the one hand, contends that according to the sound legal construction of the bond there are five separate cautionary obligants; while the defendants, on the other hand, contend

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that there are only three, Clark, Grierson, & Co., as a company being one party. The Lord Ordinary (Jerviswoode) held that the obligation of Robert Bland Clark and william Grierson, as individuals, was superadded therein to the obligation of Clark, Grierson, & Co., as a company.

To-day, after argument, the Court made avizandum with a reclaiming note for the defenders.