Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 CAUTIONER.

Bank of Perth
v.
Creditors of Mr Robert M'Intosh, as one of the Cautioners for Anthony Ferguson

Date: 4 March 1777

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The Bank of Perth, having resolved to employ Anthony Ferguson as their agent at Edinburgh, took from him, and four other gentlemen, a bond of caution. By this bond, Anthony Ferguson became bound for the whole sum that should at any time be due by him to said Company; and the other gentlemen, respectively for, and in the sum of ₤1000 sterling each, as cautioners for him to that extent, for whatever sum he might at any time receive of the Bank's in his hands: that is to say, “ That he, the said Anthony Ferguson, shall faithfully account for, and pay what balance shall be due by him, to the said Company; or failing thereof, that we shall severally, and rateably, according to the sums for which we are hereby respectively bound, pay to the said Company the said balance.”

In 1772 Anthony Ferguson stopt payment; in debt to the Bank in the sum of £5056; and, on the 15th of September 1773, the Company received a dividend of his effects, amounting to ₤1287. After which, they pursued the cautioners for the balance, at the rate of ₤1000 each.

The cautioners pleaded, That the dividend received by the Bank out of Anthony Ferguson's effects, behoved to be communicated to them proportionally with the Bank;—and if this was done, each of the cautioners behoved to answer for the remainder, always not exceeding £1000 each.

The case was attended with some difficulty at first view; but, upon an attentive consideration, it appeared, that the cautioners had come under two obligations,—an indefinite one, that Ferguson should account;—and a definite one, that, on his failing to do so, each of them should be liable only in the sum of £1000. Now, the first obligation was not taken away by the second; and therefore, although, in a common case, there might have been some ground for the plea of the cautioners, yet, in this case, they were barred by their own deed, and could not ask it.

This case occurred in the ranking of Robert M'Intosh's Creditors, who, as was alleged, either personally or factorio nomine for his brother John, was one of the four cautioners; and the point was pleaded in objection to an interest produced for the Bank of Perth, who had adjudged for the whole £1000, effeiring to Mr M'Intosh's obligation, without allowing the dividend. “ The Lords repelled the objection,” 21st January 1777.)

They thought the cautioners bound that Ferguson should account indefinitely,—and that a taxation of this, to ₤1000 each, no doubt freed them from paying ultra; but did not entitle them to any share of Ferguson's effects, until the Bank was totally paid.

The case was reckoned of importance, in point of precedent, many bonds of caution in the public offices, Banks, &c. being conceived in that form.

This day, (4th March 1777,) upon advising a reclaiming petition and answers, the Lords adhered. They thought the cautioners barred from competing with the Bank, personali objectione, in terms of their bond.