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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Spence v Brownlee [1834] CA 13_199 (13 December 1834) URL: http://www.bailii.org/scot/cases/ScotCS/1834/013SS0199.html Cite as: [1834] CA 13_199 |
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Page: 199↓
Subject_Cautioner.—
Circumstances in which held incompetent for a cautioner in a bond of annuity, to insist against the principal for a total relief.
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
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
_________________ Footnote _________________
* “The Lord Ordinary would be sorry to interfere with a cautioner's right of relief from his principal. But, where there has been no distress, where the principal is not vergens ad inopiam, where the obligation has not been long current, and though embracing a tract of years, is for a definite, and constantly decreasing amount; and, above all, where the cautioners, at entering into it, required and obtained an heritable security, with which they were then satisfied, and in the value of which no change has occurred, he thinks it would be contrary to the bona fides of the transaction to support a demand, such as is here made, for instant and total relief. The original transaction was to get £600 for the defender, on his granting bond, with security, for an annuity of £100 for eleven years, and now, soon after the lapse of two of those years, and without alleging any change of circumstances, one of the cautioners proposes, that the defender shall invest £600 in purchasing, for his special relief, a similar annuity for the seven or eight years that are to run. If this is competent now, it would have been equally competent the week after the bond was signed, when it would obviously have defeated the whole transaction. Nay, it would have been more reasonable then than now, since the utmost extent of the cautioner's liability is fallen from £1100, to between £700 and £800, and is yearly falling—so that the security, if originally good, must be gradually becoming more and more redundant.
“The allegation of M'Laren's incapacity, if it ever was more than a pretext, is now confessedly obviated; and, as to the very suspicious charge of horning, said to have been given since this action was raised, it is enough to say, that it is not mentioned in the record, and is only admitted by the defender, under qualifications which make it any thing but a ground for deciding in favour of the pursuer.”
has been recalled, on medical certificates, purporting that he had been perfectly recovered, and capable of managing his affairs for the last ten years, and that he has since granted a holograph recognition and renewal of his cautionary obligation; and also, in respect of the heritable security and bond of relief over the defender's property, which was granted to, and accepted by, the pursuer and his cautioners on entering into the obligation in question, little more than two years ago, and that it is not seriously alleged that the value of the property thereby conveyed has since fallen, sustains the defences, assoilzies the defender, and decerns; finds him entitled to expenses.”
The Court adhered.
Solicitors: Hamilton and Cooper, W. S.— And. Smith, W. S.—Agents.
