1

duct of one of their agents, that he should be dismissed, or should procure additional cautioners, the additional cautioners, not being informed of the state of matters, were found not liable for the frauds and deficiencies of the agent, although the bank at the signing of the obligation was not aware of them, but only saw irregularities. After conflicting decisions, it has been settled, that to release a cautioner who has been misinformed of the extent of his risk, it is not necessary that he should show the misstatement to have been wilful and fraudulent, but sufficient if it be shown that it was such as must be presumed to have influenced him in undertaking the cautionary.2 If any peculiar check or watchfulness on the part of the employer is stipulated for between him and the cautioner, it must be strictly attended to, to preserve the cautioner's liability.3 Though no stipulation be made on this point, the employer must not allow the cautioner's interest to be endangered from undue negligence in observing that the debtor performs his duty. He must not alter the rotation of duties stipulated to be performed when the obligation was entered on, nor, if no stipulation was made, can he materially alter them from what they were at the time of taking the obligation, or from what are the usual duties connected with the nature of the office, without relieving the cautioner.5

Representatives.-If such obligations in the usual terms bind the cautioner and his "heirs, executors, and successors," his representatives are in the same situation in which he was. If the obligation was terminable by him, it will be so by them; if it was not terminable by him, it will, so far as they are concerned, be in the same position as any debt against the estate. When representatives find that their ancestor was a cautioner for faithful performance of an office, if they do not wish to continue liable, they should give warning to that effect. Unless a balance be struck at the time of the cautioner's death, and new arrangements made, the representatives will be liable if there be ultimately a balance against the debtor, however the account may have stood at the cautioner's death.6

1

Messengers at Arms, before they can practise, must give

Smith, &c. v. Bank of Scotland, 14th January 1829.-2 Railton v. Mathews, 27th January 1844, reversed, 3 Bell 56. Royal Bank v. Ranken, 20th July 1844.- Dalzell v. Menzies, 15th February 1831.-Leith Bank v. Bell, 12th May 1830. Thistle Society v. Garden, 17th June 1834. Br. St. 932.-5 Mein v. Hardie, 19th January 1830.-6 Bremner v. Kerr, 14th July 1837, App. 2 S. & M'L. 895, and Court of Session, 5th March 1839.

caution to the Lord Lyon "for the damage, interest, and expense, which the lieges shall sustain through the negligence, fraud, or informal execution of the messenger." The cautioners are liable not only to the employers of the messenger, but to all against whom he may have committed any fault. They are only liable for what he may do in the capacity of messenger. That the performance of the messenger's duty would have been fruitless, as from the desperate circumstances of a debtor whom he is employed to apprehend, will not release him from responsibility for the amount of the debt. The cautioner of a messenger will not, in every case, be liable for a series of lawsuits, which may be made the consequence of the messenger's blunder. In a late case, however, where the employer had served a protest on the messenger intimating that he held him and his cautioner liable for whatever damage an irregularity might occasion, he was entitled to recover from the cautioner though he had not intimated the legal proceedings held against himself.3

Notaries-public, on the same principle with messengers, find caution on being admitted to exercise their profession.+

SECT. 5.-Judicial Caution or Bail.

Judicial caution, generally termed Bail, may be to three effects: 1st, To prevent a person who may be responsible, in consequence of a lawsuit, from leaving the country; 2d, To make such a person appear in court when summoned; or, 3d, To make good the sums which may be decreed for against him.

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Bail in Criminal Cases, which, in as far as regards the person bailed, belongs to the department of criminal law, is of the second class. As to the person becoming surety, its extent is, that the individual accused shall appear to answer for any libel which shall be offered against him, for the crime and offence wherewith he is charged," and it is generally taken for a period of six months. If the words "and at all diets of court for such action" are not added, when the accused appears the cautioner is discharged should the case be delayed.5

Caution that a litigant in a civil case shall remain within the country, is called judicio sisti-to abide judgment. It is found by persons who are shown to be in meditatione fugæ,

B. C. i. 365.—2 Fraser v. Andrew, 28th January 1831.-3 Struthers v. Dykes, 14th February 1845.—* B. C. i. 366,—5 Hume on Crimes, ii. 94.

or preparing to leave the country. But the law has been stretched in this case to the second description of judicial cautionary, by which the surety becomes bound to produce the debtor in court. This obligation is discharged by the death of the debtor, or his production in court. In case of failure of performance, the cautioner becomes liable to implement the decree against the debtor, with costs, interest, &c.1

A bond of caution is given by the person who brings a suspension of a charge on the decree of a court, or on an obligation registered for execution, and generally in advocacations from inferior courts. (See Index, Diligence.) The extent of the obligation in the former instance is generally, that the cautioner becomes bound for the suspender paying whatever the decree of the court, after considering his grounds of suspension, may award against him; but there are exceptions to the extent of the obligation, according to the merits of the case. The caution in advocations is for the expenses in the cause in the inferior court, and in the Court of Session.2

The only cases in which a defender, pursued for a debt, is bound to find caution for payment of the debt, are those strictly maritime, in which foreigners or aliens are generally parties, and which were in use to be brought before the Court of Admiralty. This caution is technically termed judicatum solvi,-to pay what may be adjudged.3 It has lately been abolished in maritime actions in the Sheriff Court, unless where the judge finds special reason for awarding it.4

A bond of presentation is an obligation by which, when a creditor has apprehended his debtor, or is possessed of the legal means of apprehending him, a cautioner may, to enable the debtor to attend to his affairs, become bound to present him to the creditor at a period specified, or in default to pay the debt. Here the cautioner becomes the keeper or jailor of the debtor, and can compel his appearance, although he should have sought the protection of sanctuary. The death of the debtor terminates the liability, and his illness or other cogent cause may suspend it.5 In a case cited above (p. 220) a verbal engagement was found not to be equivalent to such a bond.

1 B. C. i. 382-385. D. P. 312.- 6 Geo. IV. c. 120, § 41. E. iii. 3, 71. Beveridge on the Bill-Chamber, 30, et seq.-3 D. P. 261, 313.—1 l ́& 2 Vict. c. 119, § 22.—5 B. C. i. 385.

Somewhat similar is caution on loosing arrestment, which is to the extent of "payment to the arrester of the sums arrested, if they shall be adjudged to belong to him."1 (See Index, Arrestment.

1 E. iii. 6, 12.

PART IX.

CONTRACTS OF TRUST AND SERVICE.

CHAPTER I.

TRUSTS.

THE law of Trusts has a relation to various other branches of our system, with which it has occasionally to be discussed. It has been partly considered in connexion with marriagecontracts (see p. 20), and again with reference to family settlements (p. 113), while in name at least it has a still more conspicuous position in the arrangements for the distribution of bankrupt estates among creditors, being there considered in two different forms, the one where there is a statutory trustee acting under the bankrupt act, the other where the method of a private trust is adopted for the distribution of a bankrupt estate. It has been considered, that notwithstanding these occasions for noticing the special application of this branch of the law, the scope of the work would be incomplete, without a slight sketch of the principles of law applicable to Trusts in general.

SECT. 1.-Appointment and Nature.

Erskine defines a trust to be "of the nature of a depositation, by which a proprietor transfers to another the property of the subject intrusted, not that it should remain with him, but that it may be applied to certain uses for behoof of a third party." The transference of property, either existing or prospective, seems thus to be essential to the character of a trust, and where there are services of the same class with

1 E. iii. 1, 32.