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.
Case Date Legal Subject Abstract
Watson v. Johnston 1768 Bankruptcy, Adjudication, Creditor, Debt, Cautioner, Sale Andrew Scott, John Stark, Richard Stark, William James, and William Craig went bankrupt in 1760. Pursuer, John Watson, became an agent for the creditors of the bankrupt individuals. The bankrupts's estates were adjudged by their creditors and John Watson brought a process of ranking and sale. The creditors were accordingly ranked, with Marion Stark, wife of Andrew Scott, ranked primo loco. Then, defender, Thomas Johnston, a merchant in Glasgow, purchased at a judicial sale some effects of Andrew Scott's estate. This move was designed to help pay some of Scott's creditors, and to make annual payments of a liferent, to Scott's wife. The Defender died without paying the creditors, and his cautioner proved insolvent. Thus, Mr. Watson, Scott's creditors and Mr. Macneil of Callonsay a creditor of Johnston brought a process to sequestrate the subjects originally belonging to Andrew Scoot and purchased by Thomas Johnston. This is a multiple-poinding process where the creditors of the parties related to the bankrupt individuals claimed that Mr. Johnston had left his affairs in very great disorder.
Welsh v. M'Veaghs 1780 Debt, Arrestment, Cautioner, Poinding, Diligence, Aliment Margaret Lumsden, relict of Hugh M'Veagh, and Henry Macveagh, his son, petitioned the Court to alter its interlocutor regarding whether a messenger might be entrusted with custody of money recovered by poindings. William Welsh answered, defending the liability of Lumsden and Macveagh as cautioners for a fraudulent messenger.
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.
William Maxwell v. Dougal Maxwell 1765 Debt, Cautioner, Trustee, Compensation, Creditor, Liferent William Maxwell of Nithsdale pursued Dougal Maxwell of Cowhill regarding the calculation of compensation due upon a heretable Bond. The pursuer maintained that compensation should be reckoned from the date he acquired the bond rather than from 1711, while the defender argued that the claim was unjust and incompetent. Both parties submitted memorials on 18 February 1765 setting forth their respective positions on the proper date for calculating the compensation owed.

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