Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Anent Fidejussion
1671.
July.
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About this time a bond granted by a principal and his cautioner was quarrelled as null quoad the cautioner, because he had signed it six days before the principal; and it was alleged that fidejussion being an accession and sequel of the principal obligation, (without which it cannot subsist,) it must follow the same and not precede it.
The Lords found whatever subtility was in the Roman law thereanent, yet that the same could never be respected in our cautioners; who differed exceedingly from theirs, and were in effect correi debendi, co-principals, bound conjunctly and severally for the debt, and so it was no matter whether they preceded or followed. But the debate ran on a gross ignorance of the civil law; for by it a cautioner may either precede or follow the principal obligation; L. 4. and 6. D. de Fidejussoribus; par. 3. Ihstit. eodem; L. 50. D. de Peculio; L. 35. D. de Judiciis. And as for the objection that it is a sequel, the same has no weight, because the lawyers make use of a fiction here, by which the accessorian obligation, though prior in time, yet juris intellectu is held posterior to the principal obligation; just like a substitution, which will be maintained by reason of this fiction though it precedes the institution of the heir; l. 2. p. 5. et 6. D. de vulgari et pupillari; and like to a servitude which may be imposed and constituted on a house not yet built; L. 23. p. ult. D. de servit. urbanorum. See annotata upon the act of Parliament in 1670, about annexing Orkney and Zetland to the crown.
