BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Earl of Kinghorn v The Earl of Winton. [1673] Mor 14062 (11 December 1673)
URL: http://www.bailii.org/scot/cases/ScotCS/1673/Mor3214062-046.html Cite as:
[1673] Mor 14062
A cautioner entitled to propone a defence which was sustained for the principal debtor, and he succumbed therein, the cautioner not having been called in the process.
Click here to view a pdf copy of this documet : PDF Copy
The Earl of Kinghorn pursues the Earl of Winton as heir to his goodsire, who was cautioner for the Earl of Marischal, in the contract of sale of the barony of Urie, sold by the Earl of Errol to Marischal; in which contract, Marischal and Winton were obliged to pay 2000 merks, as a part of the price to Mowat of Redcloak, whereunto Kinghorn hath now right. It was alleged for the Earl of Winton, That he had a competent defence, viz. that the sum was satisfied by Redcloak's intromission, or at least the lands sold were affected with a tack, the burden whereof was equivalent to the sum. It was replied for Kinghorn, That this defence was not competent, because payment being proponed against Mowat of Redcloak, an incident was used against Marischal, the principal debtor, whereby that allegeance being intimated to him, and he failing in probation, there was no necessity to intimate it to the cautioner, who runs the hazard with the principal.
The Lords found the cautioner might make use of this defence, seeing there was no intimation made to him, lest the negligence or collusion of the principal might prejudge the cautioner.
