Definition
In Scots law, a person who formally vouches for the financial sufficiency of a cautioner (surety) and, by doing so, agrees to become subsidiarily liable for the underlying debt if the cautioner fails to perform. The attestor occupies a secondary position in a chain of suretyship: the principal debtor owes the obligation, the cautioner stands as surety, and the attestor stands behind the cautioner as a guarantor of the cautioner's own reliability. Subsidiary liability means the attestor is not called upon first — the primary obligation runs to the cautioner — but the attestor can be reached if the cautioner proves insufficient.
Common Confusion
The attestor of a cautioner is not the same as a cautioner. A cautioner is the surety for the principal debtor; the attestor is a surety for the surety. Researchers accustomed to English and American suretyship doctrine, which rarely formalizes this layered structure under a distinct term, may conflate the two roles or assume the attestor is merely a witness to the cautioner's signature. The attestation function here carries substantive legal consequence — a pledge of subsidiary liability — not merely an evidentiary or notarial one.
Why It Matters in Research
This term belongs entirely to Scots law and will not appear in English common law or American legal sources except as a passing reference in comparative or conflict-of-laws discussions. Researchers working in pre-union or early post-union Scottish legal records should understand that "attestor" in this context is a term of art with financial consequence, not a synonym for witness. The word "subsidiarie" in the historical sources is a Scots law term reflecting the principle that subsidiary liability cannot be enforced until the primary obligant (here, the cautioner) has been given the opportunity to perform or has been shown insufficient — a principle distinct from the English law of co-suretyship.
Because the corpus of primary Scottish legal materials available in English-language research libraries is limited, this term is most likely to surface in Scots law treatises, Bell's Dictionary and Digest of the Law of Scotland being the key reference, and in annotated legal dictionaries that drew on Bell. Researchers encountering the term in historical documents should resist reading it through the lens of Anglo-American attestation, where the act of attesting is typically evidentiary (certifying execution of an instrument) rather than creating substantive liability.
Historical Dictionary Support
All four source dictionaries reproduce substantially the same definition, each tracing the term to Bell — a reference to George Joseph Bell's Dictionary and Digest of the Law of Scotland. The uniformity is telling: this is not a term that generated doctrinal debate across commentators, but rather a technical classification that passed from Bell into the English-language legal dictionary tradition largely unchanged. Rapalje & Lawrence adds a citation to Burrill, and Burrill cites Bell's Dict. directly, confirming the single-source lineage.
None of the four dictionaries elaborate on the mechanics of how subsidiary liability operated for the attestor in practice, the procedural steps required before the attestor could be called upon, or how Scottish courts distinguished between an attestor's liability and that of a co-cautioner. Researchers needing that level of doctrinal detail must go to Bell directly or to later Scots law treatises on cautionary obligations.
The word "subsidiarie" — preserved in all four entries without anglicization — is itself a meaningful signal that the compilers recognized the term's purely Scottish character and did not attempt to assimilate it into English legal vocabulary.
Jurisdictional Note
This term is specific to Scots law. It has no recognized equivalent in English common law or in American jurisdictions. It may appear in comparative law scholarship on suretyship and in historical Scottish court records, but it carries no operative meaning outside the Scottish legal tradition.