JAMES STEWART and CURATOR v JAMES BAIKIE, ALEXANDER STEVENSON, and ALEXANDER SCOT (Court of Session)

Defences on the merits were lodged for Mrs Stewart and Alexander Stevenson, which the Lord Ordinary (Cringletie) repelled, (30 May 1823-4), and found that the tutory had fallen by the death of the said Thomas Strong; and thereafter (7 July) decree of exoneration was pronounced in favour of Mr Baikie, there being at that date a balance in favour of Mr Stevenson, as factor.

Another action was also brought by the pursuer against the defender Mr Scot, as cautioner for Mr Stevenson's intromissions as factor.

‘In these circumstances, the Lord Ordinary has pronounced the above interlocutor, as most conducive to the interests of the whole parties concerned.’

The general question in the action against Mr Baikie was, whether he, as cautioner for three tutors, in the circumstances above detailed, and under the conditions of the bond of caution, was relieved of his obligation by the death of one of the tutors during the currency and existence of the tutory, the tutory itself having been found not to fall by that event?

Even supposing that the defender's liability did not fall ipso jure by the death of Mr Strong, it was competent for him to withdraw from any future responsibility, and this was the object of the action of exoneration at his instance. His obligation was prospective, and for the faithful discharge of the duties of an office; and it is in the power of such a cautioner to withdraw his cautionry in futurum, upon giving due notice of his resolution to do so, and leaving it to his principals, if called upon to do so, to find new caution, Bell , i. 280; Welsh v. Welsh, 14 Feb. 1778, M. 16,373.