Scottish Court of Session Decisions

Subject_1 CAUTIONER.

Magdalen Scott
v.
Eliz Nicholson.

1751, Nov. 29.
Case No. No. 20.

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Milleny, administrator to his daughter, confirmed her and himself administrator in a bond of 2000 merks, and found Sir James Nicholson cautioner, and Milleny uplifted the money,—and now Magdalen Scott sues Sir James's relict and executrix as representing him the cautioner, to pay the money. The defence was, that Sir James was cautioner for the pursuer as executrix, and the father only as her administrator, and that the executrix the pursuer, is herself bound to relieve him. Answered, He was cautioner indeed for the pursuer to all strangers, as far as she should intromit, and she was bound to relieve him; but he was also cautioner to her for her father, whereof he was bound alone to relieve him, and quoted Hope's Minor Practics, and so we unanimously found. 6th February 1750 The Lords adhered.—Renit. Justice-Clerk.—(6th December 1749.)

Lady Nicholson pleaded some other defences against the bond mentioned of the above date; 1st, That though her husband is bound cautioner for the father to his infant daughter, as well as for her to all others having interest, yet if the money was uplifted by her only with his consent, the cautioner is not liable to her, and therefore the pursuer must prove that it was uplifted by the father during her pupillarity, which lasted but a few months after confirmation. Answered, The upgiver of the testament, and his cautioner, must either produce the bond, or prove it paid to her. A second defence, That the daughter in 1728 had accepted a bond of provision by her father of 2500 merks, in full of all portion natural, and of all she could claim of him in any manner of way. Answered, That could not be meant in payment of this debt, because it was truly less than the debt; 2dly, By an heir of a strict entail pursuant to a faculty to give bairns provisions to a limited extent; 3dly, The general clause can only mean claims of the same kind with those mentioned, viz. portion natural, &c. Third defence, Supposing the father liable as tutor of law, yet the action against him prescribed in ten years after the daughter's majority. Answered, That prescription only competent to such tutors as are bound to make inventories. 2dly, The father liable super alio modo as upgiver of the testament. The Lords thought there was some difficulty in the first and third defences, and therefore did not decide thereon, but unanimously sustained the second and assoilzied.—(29th November 1751.)