Legal Subject: Cautioner

Case Date Legal Subject Abstract
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.
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.
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 5 Aug 1778 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.