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

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. Lord Eskgrove's Interlocutor	1793	Cautioner, Creditor, Reduction, Interlocutor, Succession, Bankruptcy
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	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.
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.
Donald Campbell v. David Campbell	1776	Cautioner	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.
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.
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.
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.
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.
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.
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.
Radcliff and Company, and their Attorneys v. Loch	1777	Constat de Persona, Mistaken Identity, Cautioner, Misnomer	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 Carrick v. John Carse	1777	Cautioner	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.
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.
White v. Stalker and M'Ra	1788	Debt, Aliment, Succession, Interlocutor, Cautioner, Creditor	John White petitioned to alter the interlocutor regarding the intromissions and discharge of John Stalker, the tutor who died in 1779, insisting upon his own posthumous call. Poor Isobel Stalker and Mary M'Ra answered, responding to the Lord Ordinary’s interlocutor upon defects in the tutor’s accounts and inventory.
Wilkins v. Campbell	1798	Debt, Arrestment, Creditor, Jurisdiction, Sequestration, Cautioner	Miss Elizabeth Wilkins pursued William Campbell, Sheriff-Clerk of Ayr, seeking to hold him liable for a debt on the ground that he had rendered himself responsible by accepting an illegal bond of caution for Edmund Kelly. Campbell defended by denying liability, citing irregular bail procedures and absence of malversation, and challenged the sufficiency of Reverend Jones’s affidavit while seeking to introduce his own account of the Dublin security transactions. Both parties subsequently petitioned the Court regarding an interlocutor—Wilkins concerning her entitlement to expenses and Campbell seeking its alteration—to which Wilkins and Quintin Johnston answered maintaining their position on the bond’s improper acceptance.