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Mr Hugh Bremner, the cautioner, died in 1804; but his cautionary obligation was not recalled by his representatives, and Mr James Bremner continued, as formerly, to hold the office of factor till his death in 1826.
The pursuer was afterwards appointed curator bonis for Mrs Maxwell, and, as such, brought this action against the representatives of Hugh Bremner, for payment of a large balance, said to have been due by James Bremner on his intromissions, at the expiration of his office, and which the pursuer was unable to recover from his estate.
Answered —The bond is conceived in the usual style of all such documents at the time; and its terms do fairly import the cautioner's liability for the factor's intromissions as well as management.
The Lord Ordinary reported the whole case to the Court; and upon the point here reported,
The Court ‘repelled the objection pleaded by the defenders to the form of the bond, granted by the late James Bremner, as principal, and the late Hugh Bremner, as cautioner.
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