AI-transcribed

Cautioner. See also Bell Com. i. 359. The accepting of or acquiescence in a tack, or other inferior right, has been found to imply a renunciation of any claim to a higher right. Taking a right to a second tack from a third party, does not imply a passing from the former, unless the posterior tack had a greater duty or shorter endurance; and the tacksman paid the greater duty, or declared expressly that he stood by the latter tack. But accepting a second tack from the grantor of the first, bearing a different commencement and duty, was found to import a passing from the former.

Definition source
AI-transcribed
Bell, William, A Dictionary and Digest of the Law of Scotland, 7th ed. rev. George Ross (Edinburgh: Bell & Bradfute, 1861), s.v. “Cautioner.” Public domain.

Legal Subject: Cautioner

Case Date Legal Subject Abstract
Alexander Bruce v. The Representatives of John Stein 1792 Succession, Debt, Creditor, Aliment, Tack, Cautioner Alexander Bruce pursued the representatives of John Stein for a debt arising from a 1770 bond involving Robert Stein, with trustees and spouses' portions also forming part of the dispute. The defenders resisted the action, leading Bruce and his trustee Alexander Abercromby to argue that the defenders, as representatives of the deceased John Stein, remained liable for the bond obligation.
Archer v. Donaldson 1793 Debt, Cautioner, Poinding, Sequestration, Bankruptcy, Aliment Andrew Archer and Margaret Low petitioned the Court to alter an interlocutor that had assoilzied them from a process of reduction. On the same day, David Guthrie, James Ker, and others, trustees for the creditors of William Fullarton, likewise petitioned the Court to alter the same interlocutor.
Archer v. Lord Eskgrove's Interlocutor 1793 Cautioner, Creditor, Reduction, Interlocutor, Succession, Bankruptcy
Baillie v. Eskgrove's Interlocutor 1795 Bankruptcy, Cautioner, Succession, Prescription, Trustee, Diligence Baillie, as petitioners, challenged Eskgrove’s interlocutor rejecting their defense that a 1785 judicial bond was exempt from the 1695 Act’s seven-year limit by prescription. Based on the single document cataloged for this case.
Baird v. Allan and Steuart 1793 Debt, Bankruptcy, Cautioner, Bill of Exchange, Interlocutor, Reduction Respondents, Messrs Allan & Steuart, Bankers in Edinburgh, ask the court to consider 1. Competency of the appeal and 2. Merits of the question. This case was in litigation for almost a decade leading up to this appeal. In 1783, Mr. Moffat, grazier in Portsburgh, bought a parcel of cattle from Mr. Guild with a bill of 150 £ sterling, payable in three months. Mr. Guild brought the bill to Respondents, Messrs Allan & Steuart, Bankers in Edinburgh. Respondents discounted the bill, after Mr. Moffat swore to its validity. Petitioner John Baird and Mr. John Newlands were Cautioners for Mr. Moffat. When the bill became due, Mr. Moffat refused to pay, alleging the Guilds had forged copies and discounted bills at other banks, bringing the sum of money owed to well over the original 150 £ sterling. Mr. Moffat later died, bankrupt, before the valid bill was ever found. The case was heard before Lord Justice Clerk Glenlee in 1785, Lord Stonefield Ordinary in 1792, Lord Ankerville in 1790, Lord Dreghorn and Lord Abercromby in 1792. Despite multiple judgments for Messrs Allan & Steuart, Mr. Baird still challenges the validity of the bill, and appeals the judgments against him as cautioner on the bill.
Bayne and Miller v. Wisheart-Belshes 1792 Succession, Aliment, Trustee, Reduction, Fraud, Cautioner Margaret Bayne and David Miller, baker in Perth, objected to the examination of James Dick Junior as a witness for Sir John Wisheart-Belshes in the process against him, arguing that Dick was disqualified by interest and relation. Based on the single document cataloged for this case.
Brebner v. Brebner 1767 Arrestment, Cautioner, Aliment, Executor, Suspension, Debt Helen Brebner, as executor for her deceased husband, gave her brother, Alexander Brebner, use of select estate funds. Helen won an action to retrieve this money from Alexander, and he challenged this judgment. Helen's husband, James Frigge, died in 1756, after naming Helen executor of his considerable finances, which consisted mainly of bills and bonds. When Helen received money for payments of debts due to her former husband, she allowed her brother Alexander use of these funds. Helen claimed that she put the money in Alexander's hands after he advised her that allowing him to invest the money in trade would increase the funds. Helen argued that as Alexander's credit declined and as he fell into debt, she sought to get back the money, which he refused. Alexander claimed, alternatively, that Helen had put the money in his hands for security as she drew on him for funds as needed. Eventually, Alexander argued, he became dissatisfied with Helen's management of the finances and refused to allow Helen any additional money. Alexander offered Alexander Ogilvie of Culvie as his cautioner, to which Helen did not consent based on the state of his finances.
Buchannans v. Gray and Hall 1782 Sequestration, Debt, Cautioner, Succession, Creditor, Disposition Alexander and Jean Buchanan initiated a ranking and sale of land that had belonged to Robert Hall of Fulbar. The land was possessed by John Farquhar-Gray of Kilmardinny and Jean Hall, each of whom claimed to have a heritable security on the property. The Buchanans objected to these securities and raised a second process against Farquhar-Gray and Hall to challenge their claims. While the proceedings were pending, the Buchanans petitioned the court to sequestrate the land in question. Farquhar-Gray and Hall argued that it would be improper to sequestrate land that was already in their possession, and that the parties’ rights should be determined in the other proceedings.
Cairns v. Common Agent in Ranking of Newlaw 1791 Debt, Interest, Bankruptcy, Sale, Cautioner, Agent Thomas Cairns of Dundrenan, Esquire, petitioned the Court against the Common Agent in Ranking of Newlaw. He sought exoneration from the price of lots 1st and 7th of the estate of the deceased David Currie and delivery up of the bond.
Clark v. Stuart 1779 Bonds, Sist, Maryland, Debt, Cautioner, Creditor In August 1770, Hugh Macbride, Charles Philipshill, and the petitioner Peter Clark granted a bond for £150 sterling to Elisabeth Macbride. Charles Philipshill was the receiver of the money while the petitioner cosigned the loan at the request of Marion Philipshill and James Stewart. Both Marion Philipshill and James Stewart signed a promissory document, certifying they would indemnify Clark £75 each should repayment be requested. In June 1777, the heirs of Elisabeth Macbride called in the loan and Peter Clark paid her the money. The other two signers of the loan having relocated to Maryland. Marion Philipshilll reimbursed Clark her half of the loan but James Stewart did not. The Magistrates of Glasgow ruled that Stewart should pay Clark, but Stewart brought action to the Court of Session. In a previous judgment Lord Stonefield pronounced that the case be put on hold until the principal debtor, Charles Philipshill, be sued for repayment. Peter Clark then petitioned the court to have this decision overturned. On March 3, 1779 the Court remitted the cause to the Magistrates of Glasgow. Stewart then petitioned the Court to alter this interlocutor. Handwritten marginalia on this document indicates that the Court refused Stewart's petition.
Creditors of Angus Fisher v. The Creditors of Patrick Campbell, and Others 1778 Bonds, Debt, Cautioner, Assignation, Creditor, Bankruptcy Angus Fisher, merchant of Inveraray, borrowed some £600 sterling from the Old Ayr Bank. Captain James Campbell, Patrick Campbell of Knap, Gillies of Duchra, and Ochiltree of Lindsaig served as joint-cautioners. At the same time Angus Fisher had other outstanding debts, including one held by Mrs. Sarah Ranken. Both Captain Campbell and Mrs. Ranken were granted heritable bonds of relief over the lands of Auchindrain for payment and security. In December 1771, the Old Ayr Bank demanded repayment. Angus Fisher had died insolvent, as had Gillies of Duchra. Campbell of Knap, Ochiltree, and their creditors, gave Captain Campbell £230 each, and he then reimbursed the bank in full. All the joint-cautioners had arranged that the heritable bond held by Captain Campbell would be used to reimburse all cautioners and their creditors. Mrs. Sarah Ranken and other creditors of Angus Fisher objected to this arrangement, claiming that the income from the property should instead be used to pay other creditors who held heritable bonds against Auchindrain. In 1778 Lord Hailes pronounced that Captain Campbell's co-cautioners were indeed entitled to a residuary security from the property. Ranken and other creditors of Fisher then petitioned the Court, arguing that the heritable bond was held personally by Captain Campbell and could not be used to reimburse the other co-cautioners. The Court repelled her objection.
Donald Campbell v. David Campbell 1776 Cautioner, Debt, Trustee, Assignment, Security, Creditor John Campbell of Clochombie and James Campbell of Ballinaby were co-cautioners on a bond granted by Major Donald Campbell of Castlesween to the Bank of Scotland. After Castlesween encountered financial difficulties, Colonel Donald Campbell of Saddell stepped in to pay £4000 towards his debts, including the bond. As part of this transaction, Saddell took assignments of the debts in question and received a heritable security over Castleween. Subsequently, Saddell sought payment from David Campbell of Clochombie, son of the elder Clochombie. These two men struck a deal in which David agreed to pay off the entire £4000 in exchange for assignments of the debts and the security over Castlesween. As the new assignee, David sought payment from Donald Campbell of Ballinaby, the son of his father’s co-cautioner. Ballinaby contended that he was entitled to be ranked on the heritable security, leading to a dispute about the manner in which he would be ranked.
Douglas, Heron, & Company v. William Riddick 1791 Debt, Arrestment, Cautioner, Creditor, Prescription, Sequestration William Riddick, as defender, petitioned the Court to alter Lord Dreghorn’s interlocutor against him at the instance of Douglas, Heron, & Company, arguing that the bond in question fell under the septennial limitation for cautionary engagements and that the decree lacked valid diligence. The respondents answered, asserting that the bond was not for immediate debt and that Riddick was barred from the benefit of the limitation by dolo. Riddick thereafter petitioned the Inner House to overturn its interlocutor on the ground that the cautionary obligation was subject to the septennial limitation.
Duff v. Innes 1770 Debt, Arrestment, Cautioner, Succession, Bill of Exchange, Prescription Lauchlan Duff pursued Innes for sums due under two obligatory missives dated 1758, arguing that the defender remained liable despite a defence of septennial prescription. Based on the single document cataloged for this case.
Eden, et al. v. Anstruther, et al 1792 Debt, Cautioner, Creditor, Bankruptcy, Credit, Interlocutor Messrs Eden, Ridley, and Co. pursued Sir John Anstruther, Dr Steuart Threipland, George Oswald, and the representatives of John Mackay for £2,000 under bonds of credit granted in 1776. The defenders denied liability, Anstruther contending that his bond was never operated upon by Robert Fall individually and that no money had been drawn under it, while Threipland, Oswald, and Mackay asserted that no account had been opened on their bond and that the claim exceeded its scope. The litigation involved petitions to alter interlocutors and to remit to the Lord Ordinary, together with arguments that the formation of a new copartnery following Charles Fall's death rendered prior interlocutors open to reconsideration and requests to lodge replies regarding cash-account practice.
Eden, Ridley, and Company v. Threipland, et al 1798 Debt, Bankruptcy, Cautioner, Interest, Creditor, Interlocutor Eden, Ridley, and Company, as chargers, sought enforcement of a bond to recover interest calculated on each individual advance, disputing the position of Dr Stewart Threipland of Fingask and George Oswald of Auchincruive, as suspenders, that liability extended only to principal and interest accruing from the date of bankruptcy. The suspenders maintained that the chargers' demand for additional interest ran contrary to prior interlocutors and established accounting practices.
Forbes v. Magistrates of Canongate 1791 Arrestment, Debt, Creditor, Jurisdiction, Cautioner, Oath Archibald Forbes, creditor of Alexander Robertson, pursued the Magistrates of Canongate for unlawfully releasing Robertson from imprisonment for debt, alleging the liberation contravened the 1671 Act because the health certificate was unsworn and granted unrestricted liberty. The magistrates answered that they had not breached the act, maintaining that Robertson’s health had been sufficiently established by certificates on soul and conscience.
George Brown v. Alexander Campbell 1794 Creditor, Debt, Bankruptcy, Aliment, Cautioner, Bill of Exchange George Brown pursued Alexander Campbell regarding the validity of a missive-letter for the sale of heritage, debating whether the writing was null and void under the Act of 1681 for lack of statutory solemnities notwithstanding acknowledgment of subscription. Craigie appeared for the pursuer and petitioned the Court to alter its interlocutor and decern in terms of the libel, or alternatively to ordain the defender to answer the facts and produce the correspondence. Erskine countered with a memorial maintaining that the missive was ineffectual for want of requisite formalities.
Glass v. Kelly, &c 1776 Vestita Viro, Debt, Arrestment, Succession, Bill of Exchange, Cautioner James Rae left his wife and daughter, Agnes Kelly and Agnes Rae, a £40 owed by John Murray, junior. Kelly's second husband, William Duncan, being drowned in debt, renounced his right over his wife's effects. One of Duncan's debts was jointly shared with Bailie Andrew Glass, and held by David Loch. Loch obtained a decree from the High Court of Admiralty against the two, and Bailie Glass had Duncan imprisoned in the St. Andrews Tolbooth until he could pay his share of the debt. In order to free her husband from jail, Kelly and Rae endorsed the above-mentioned bill to Glass. Duncan then signed his furniture over to Rae as security. After paying Loch Duncan's share of the debt, Glass attempted to collect payment of Murray's bill, but was unable. He then raised an action before the Sheriff of Fife against Murray, Kelly, and Rae, charging the latter two with liability for the value of the bill. He argued that value was given to Kelly and Rae for the endorsement: the release of Duncan from prison, and the above-mentioned furniture. The Sheriff found Kelly and Rae liable, but Lord Covington and the Court determined that as a vestita viro (married woman), Kelly's endorsement of the bill was null and void.
Hart v. Lord Eskgrove's Interlocutor 1787 Debt, Creditor, Cautioner, Bill of Exchange, Bankruptcy, Diligence James Hart, as pursuer, petitioned the Court of Session to alter an interlocutor issued by Lord Eskgrove. Based on the single document cataloged for this case.
HM Advocate v. James Cathcart Taylor 1760 Debt, Aliment, Cautioner, Bill of Exchange, Contract, Reduction His Majesty's Advocate pursued James Cathcart Taylor and argued that two bills for 300 and 200 merks were granted ob non causam, as indentures for Aneas Cameron's apprenticeship were never properly executed. Based on the single document cataloged for this case.
Inglis v. Bethune 1798 Cautioner, Debt, Assignation, Interlocutor, Bankruptcy, Action William Inglis petitioned to reverse a court’s finding that defender William Bethune’s 1786 holograph bond was mere corroboration rather than new security, seeking to hold Bethune jointly liable for half the debt. Based on the single document cataloged for this case.
Isabel Howison v. John Howison 1784 Debt, Cautioner, Bill of Exchange, Sequestration, Prescription, Security Three men granted a bill to Stephen Howison, the late father of pursuer Isobel Howison. Additionally, John Howison of Hyndford, defender, wrote Stephen a letter promising that the bill would be paid. Later, Isobel sued John for payment. In response, John argued that the action was barred by a six-year limitation on bills and a seven-year limitation on liability for cautioners.
James Stewart v. Alexander Scot 1830 Cautioner, Factor, Creditor, Intromission, Aliment, Mandate James Stewart, as pursuer, submitted a revised case against Alexander Scot, the defender. Based on the single document cataloged for this case.
Kincaid v. Lord Justic Clerk's Interlocutor 1808 Sequestration, Bill of Exchange, Diligence, Oath, Cautioner, Fraud Kincaid sought suspension of a charge brought against him upon a bill, alleging that the drawer had already paid the debt and that the charger and drawer had fraudulently attempted to extort double payment. Based on the single document cataloged for this case.
Laing v. Watson and Mollison 1788 Debt, Arrestment, Sequestration, Creditor, Cautioner, Bankruptcy Patrick Laing, tanner and burgess of Brechin, pursued Watson and Mollison, arguing that he had been wrongfully imprisoned and that the defenders acted with malice and without legal justification. Based on the single document cataloged for this case.
Lamb v. Neilson 1784 Apprentice, Cautioner, Deed, Interlocutor, Penalty, Representation Andrew Lamb raised a charge to enforce an indenture executed by George Neilson, his apprentice, and William Neilson, a cautioner. The Neilsons sought a suspension of the charge, arguing that the indenture was void because it had not been properly stamped. Lamb argued that he could still obtain the stamp and pursue the action.
Lindsay v. M'Laren 1780 Admiralty, Jettison, Arrestment, Cautioner, Proof, Interlocutor This case was about liability for goods jettisoned from a ship. Alexander Maclaren, master of the Diligence of Fortrose, caused goods belonging to David Lindsay to be thrown overboard during a storm. Lindsay sued Maclaren in the High Court of Admiralty, seeking compensation. Lindsay claimed that when goods were ejected to save a ship, it was the master’s duty to apportion liability among all owners of the ship’s cargo; according to Lindsay, Maclaren had failed to do this. Maclaren, in turn, brought an action against all the owners, including Lindsay, so that their liability could be calculated. Lindsay was successful in his action before the High Court of Admiralty, and Maclaren (together with his cautioner, Alexander Mackenzie) offered a bill of suspension in the Court of Session. Maclaren argued that the proceeding should be stayed until his action against the owners was concluded. However, Lindsay argued that Maclaren was liable because he failed to make up an average-bill apportioning liability to the other owners, and because he improperly stowed Lindsay’s goods above deck.
Macharg and Others v. Macharg and his Curators 1776 Trust, Onus Probandi, Bill of Exchange, Diligence, Debt, Cautioner Archibald McHarg was the ordinary doer of James McHarg of Keirs. When he died, in July 1774, two bills from McHarg of Keirs were in his possession. One, for £230 sterling, was unendorsed and had been accepted by James McHarg in Tairly. The other was for £264 sterling. McHarg of Keirs argued that it was self-evident that Archibald McHarg had held both of these bills in trust: the first to recover payment, the second as a fund of credit. Keirs petitioned the Court to compel the heirs of Archibald McHarg to either deliver these bills to him or destroy them. The defenders, James McHarg, eldest son of Archibald, and his curators, argued that as these bills had been found in the possession of Archibald McHarg, the burden of proof of possession lay on McHarg of Keirs. Lord Monboddo found that the bills had been put into McHarg's hands by Keirs. The defenders gave representation, and then petitioned the Court to review Monboddo's interlocutors. According to marginalia on the case documents, the Court adhered.
Maitland and Babington v. Maitland 1798 Cautioner, Witness, Debt, Succession, Aliment, Creditor Mrs Janet Maitland and her husband Dr William Babington pursued against John Bushby Maitland in a dispute concerning the proof of a bond subscription and the competency of Thomas Bushby as a witness. The pursuers objected to Bushby's admission on grounds of consanguinity and patrimonial interest, which the defender answered and the pursuers replied to. The litigation arose following a petition to renew a commission for proving that the subscription to the bond was not that of Captain Maitland.
McKenzie v. Lowe 1778 Debt, Cautioner, Tack, Security, Creditor, Mala Fides Kenneth M'Kenzie petitioned the court to alter an interlocutor, contending that Doctor Lowe’s letter was intended to delay relief until the 1775 rents were paid rather than merely to cover a £400 arrear. Based on the single document cataloged for this case.
McNish v. Scougal and Ogilvy 1787 Witness, Deed, Reduction, Cautioner, Improbation, Act of Parliament John M'Nish pursued the reduction of a bond of caution he had granted to Messrs Scougal and Ogilvy, merchants in Leith, contending that the deed was void for lack of witnesses to his subscription and because he had not acknowledged his signature at the time of execution. Scougal and Ogilvy argued that the bond remained valid despite M'Nish's denial and the absence of attesting witnesses. The parties filed opposing informations regarding the formal validity of the instrument.
More and Irvine v. Gibson 1770 Poinding, Deforcement, Debt, Arrestment, Cautioner, Diligence Pursuers More and Irvine were merchants in Gottenburgh (Gothenburg), Sweden. William Duncan owed them money. Robert Monro also agreed to act as a cautioner for Duncan. More and Irvine obtained an order of poinding for Duncan's assets, allowing them to secure Duncan's assets for payment of the debt. Duncan's stepson, defender Walter Gibson, prevented More and Irvine's agents from entering Duncan's house. Gibson claimed that he, not Duncan, owned the house. When More and Irvine's agents later returned to the house with letters of open doors, they found the house emptied of its most valuable furniture. Gibson also claimed that he was the rightful owner of the furniture in the house. More and Irvine accused Gibson of obstructing the poinding.
Myles v. Lyall 1797 Reduction, Debt, Bankruptcy, Cautioner, Interlocutor, Creditor Alexander Lyall, as cautioner, sought relief from liability against Myles under a bond limited to the Admiral’s decree, contending that the obligation did not extend to a later Court of Session reduction. Based on the single document cataloged for this case.
Nasmith v. Magistrates of Glasgow 1774 Arbitration, Contract, Reduction, Decreet-Arbitral, Arrestment, Cautioner David Nasmith, a mason, entered into a contract with the city of Glasgow in which he agreed to construct a quay along the river Clyde. The city subsequently raised concerns about Nasmith’s work on the quay, and the parties entered into arbitration. The arbiters found that Nasmith had been overpaid for his work and directed him to refund a portion of his fee to the city. Arthur Robertson, the Chamberlain of Glasgow, gave Nasmith a charge based on the arbiters’ decree, but Nasmith sought to have the charge suspended. He argued that the arbiters were prejudiced against him because he underbid Glasgow’s other masons to secure the contract in question.
Newton v. Anderson 1733 Adjudication, Cautioner, Sequestration, Interlocutor, Factor, Ranking and Sale Abraham Newton and John Newton petitioned the Court to recall a Decreet of Ranking and remit the Complaint against Anderson to be heard. Based on the single document cataloged for this case.
Park v. Glen 1778 Deathbed, Bonds, Liferent, Cautioner, Succession, Infeftment Elizabeth Park owned some bonds from the sale of her late brother's lands. She later conveyed these bonds to her cousin, Robert Park. Robert Park had a sister, Margaret, but disliked Margaret's husband. Shortly before his death, Robert Park conveyed the aforementioned bonds to his cousin, William Glen. Because Robert Park died less than a month after this disposition, Margaret Park challenged it upon the head of deathbed. Glen argued before Lord Braxfield that the subjects in question constituted a personal right and could not be challenged on the head of deathbed. The pursuer, Margaret Park, argued that as their price was made a burden upon land, they could not be alienated upon deathbed. Lord Braxfield found that one of the bonds in question, granted by Adam Walker for the lands of Wooden, constituted a heritable right. He refused further representation from Glen, who then petitioned the Court for review.
Radcliff and Company, and their Attorneys v. Loch 1777 Constat de Persona, Mistaken Identity, Cautioner, Misnomer, Debt, Bill of Exchange In June 1776, William Loch of Hawkshaw was visited at his home in Edinburgh by a man named Alexander Carrick. Loch believed Carrick to be the son of an old acquaintance, an honest farmer by the name of James Carrick. This supposed Alexander Carrick informed Loch that William Cumming and Son threatened him with diligence in light of a bill owed to Jonathan Radcliff and Company, merchants in London. Alexander Carrick asked Loch to assist him with making payment, and Loch obliged. He wrote a letter addressed to Cumming and Son in which he referred to Alexander Carrick as "Robert." Upon viewing this letter, Carrick informed Loch that it was "good for nothing" since his name was not Robert but Alexander. Upon realizing that this man was not the son of James Carrick, Loch refused to write him another letter. Several months later Cumming and Son brought a process against William Loch for the payment of this bill. After Lord Barskimming dismissed the libel, Loch petitioned the Court, arguing that his endorsement of "Robert Carrick" was a case of constat de persona - "the man being designed in such a manner as could apply to him only, and to no other person." The pursuers answered that except for the Christian name, every other detail in Loch's letter accurately described Carrick: that he was a merchant in Grassmarket who owed a sum of 49 l. 7s. to Cumming and Son on behalf of Radcliff and Company.
Robert Armour v. Gavin Young 1788 Arrestment, Creditor, Sist, Debt, Cautioner, Bill of Exchange Gavin Young, merchant in London, pursued Robert Armour, merchant in Kilmarnock, claiming that Armour had incurred liability under the second obligation of a bond of presentation by breaching the first obligation through the obtaining of a bill of suspension prior to presentation. Armour defended that he had fairly fulfilled the bond, arguing that the suspension was ineffectual and had been obtained by Hugh Ferguson without his knowledge.
Robert Carrick v. John Carse 1777 Cautioner, Debt, Aliment, Arrestment, Sequestration, Assignation Pursuer Robert Carrick was cautioner on a bond granted by Robert Robb to John Carse, William Stirling, and George Bogle. After Robb became bankrupt, Carse demanded payment from Carrick, who complied. The next day, however, Carrick requested a refund on the grounds that he had mistakenly repaid the bond. He argued that his duty to pay was extinguished by a statute that limited the obligation of cautioners to seven years. Carse refused to provide a refund, and Carrick sued. In his defense, Carse argued that although Carrick’s legal obligation had ended, Carrick still had an equitable obligation to pay. Carse further argued that there was no excuse at law for Carrick’s erroneous payment.
Rutherford v. Rutherford and Potts 1788 Arrestment, Sequestration, Hypothec, Debt, Rent, Cautioner Jane Rutherford, widow of Robert Robson, petitioned the Court to alter Lord Hailes’s interlocutor regarding the Sheriff’s refusal to grant advocation. The respondents, Rutherford and Potts, defended that refusal and asserted their preference over rent arrears and crop proceeds from 1783 roup sales.
Shepherd v. Lord Swinton's Interlocutor 1787 Arrestment, Interlocutor, Cautioner, Debt, Sequestration, Citation James Shepherd petitioned the Court to remit the Lord Ordinary's interlocutors pronounced against him. Based on the single document cataloged for this case.
Sibbald v. Maben 1784 Apprentice, Debt, Arrestment, Rent, Aliment, Cautioner Thomas Sibbald, a student at Heriot’s Hospital, entered into an apprenticeship with William Maben. In accordance with the school’s regulations, the indenture provided that the master would feed, clothe, and board the apprentice. However, in a separate agreement, Sibbald’s father agreed to relieve Maben of these obligations. Sibbald initially lived with his father and commuted to Maben’s shop near Edinburgh, but Maben later closed his shop and moved to Dunse, in another county. In consultation with an official at Heriot’s Hospital, Sibbald’s father notified Maben that he considered the apprenticeship to be at an end. Maben sued for damages, on the ground that Sibbald had deserted his apprenticeship.
Sibbald v. Mr William Wallace 1777 Foreign Merchant, Non-implement, Debt, Bill of Exchange, Cautioner, Property In June 1774, John Sibbald, a self-styled 'merchant in Gottenburg', brought action against William Wallace, advocate, with respect to two letters of guarantee Wallace had granted on behalf of Betty Irvine, an Edinburgh merchant and shopkeeper. In November 1772, Irvine had passed this surety to Sibbald in exchange for a bill of landing for four boxes of tea, which were ultimately seized and condemned by the Crown upon entering the Firth of Forth. On account of this failed adventure and the execution raised against her by the pursuer, Betty Irvine became bankrupt and left the country. Sibbald then pursued Wallace for the £80 pounds. The case came before the Lord Justice Clerk. Barskimming found the defender liable at first but later assoilzied him, and Sibbald petitioned the Court to alter this interlocutor. He argued that the conveyance in question was one that had occurred in Gottenburg, and as a foreign merchant his case was actionable. The defender argued that Sibbald was merely disguised as a foreign merchant, but he was truly a burgess of Kinghorn. Therefore, Wallace stated, "The point in the dispute, is, whether ought action to be sustained, upon a confessed smuggling contract, or rather upon a contract for doing an act prohibited by the public law, at the instance of one of the parties." He also argued his case based upon the principle of non-implement, for the transaction he had referred to in his letter of surety was different from what had occurred. The Court found in favor of the pursuer at first, but upon advising a second petition and answers, assoilzied (absolved) the defender.
Sir James Grant v. Simon Fraser 1785 Debt, Adjudication, Cautioner, Interlocutor, Multiple-Poinding, Security Sir James Grant of Grant, Baronet, as pursuer, petitioned the Court of Session to alter its recent interlocutor in his case against Simon Fraser, the defender. Based on the single document cataloged for this case.
The Daughters of Alexander Drummond v. The Creditors of May Drummond 1794 Debt, Prescription, Creditor, Aliment, Cautioner, Succession The Daughters of Alexander Drummond, as pursuers, and the Creditors of May Drummond, as defenders, were parties to a suit in which the Viscount of Arbuthnot petitioned the Court to permit payment of three bills granted by his deceased grandfather to his deceased father, dated 1773–1774 and payable in 1775. Based on the single document cataloged for this case.
The Trustees for the Creditors of John Brough v. The Heirs of Robert Selby 1794 Bankruptcy, Debt, Creditor, Security, Cautioner, Sequestration The Trustees for the Creditors of John Brough pursued the Heirs of Robert Selby regarding the extent of security afforded by a heritable bond of relief granted by Brough in 1783. The Trustees contended that the bond secured the sum drawn at the date of seisin notwithstanding subsequent fluctuations in the cash account. The Heirs maintained that the bond subsisted only to the extent of the limited sum until the cash account was closed and the infeftment renounced.
Thomas Cowan v. William Aitchison and William Walker 1797 Debt, Sequestration, Arrestment, Cautioner, Personal Protection, Creditor Thomas Cowan, flesher in Musselburgh, pursued William Aitchison, distiller at St Clement's Wells, and William Walker, attorney in Exchequer, upon a caution bond. Aitchison and Walker petitioned the Court twice to alter a recent interlocutor, first in January 1797 and again in June 1797. Cowan answered both petitions, and in his September answers maintained that the petitioners' failure to present the debtor in February 1796 had forfeited the bond.
Thomas Cranstoun v. James-Ann M'Dowal, and her Factor loco tutoris 1797 Debt, Bankruptcy, Creditor, Trustee, Cautioner, Aliment Thomas Cranstoun, Writer to the Signet and trustee for the creditors of the late Reverend Dr. John M'Farlan, sued Miss James-Ann M'Dowall and her factor to recover dividends drawn from the doctor's estate by creditors of her deceased relatives, disputing her entitlement to retain sums drawn upon debts for which M'Farlan had stood merely as cautioner. Miss M'Dowall initially petitioned to overturn Lord Monboddo's interlocutor, prompting answers from Cranstoun, who later petitioned to alter the Court's subsequent interlocutors and answered the defender's pleadings before bringing the final suit to enforce recovery under the court-approved accounting report.
Thomson v. Thomson 1782 Debt, Bill of Exchange, Creditor, Aliment, Arrestment, Cautioner Andrew Thomson pursued a bill of suspension with Alexander Ruffell against William Thomson and Andrew Tod regarding a bill granted jointly by Thomson and Ruffell. The suspenders challenged Thomson's claim that he had properly filled his name as sole drawer and was alone entitled to the bill's contents, while Thomson petitioned to alter interlocutors suspending the letters simpliciter and sought expenses against the suspenders.

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