A cautioner, distressed, granted a bond of corroboration, in which he found new caution for himself. The original debtor found bound to relieve this second cautioner.
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David Vaus, brother to the Laird of Blaws, as principal, and the Laird of Barnbarroch as cautioner for him, were obliged in a certain sum to David Aitkenhead, Provost of Edinburgh. The cautioner being put at by the creditor, gives a bond of corroboration to him, wherein Barnbarroch as principal, and his brother Lybrack was bound as cautioner for the same sum. Lybrack, after this, was forced to pay it; whereupon he convened David Vaus (who was principal in the first bond) to relieve him of the said sum that he had paid for Barnbarroch, who was only obliged as cautioner for the said David Vaus, in respect that the said David was principal debtor, and so of all equity should relieve the pursuer. Alleged, The pursuer could have no action against the defender, because he had never employed him to be cautioner for him, but he should seek his relief off his brother Barnbarroch.——The Lords sustained the action as being very competent against the defender; because, by his occasion, the pursuer had been distressed with payment foresaid. But declared that what this defender could allege against Barnbarroch, if he were seeking his relief off him, was receivable here against this pursuer Lybrack, in favours of this defender David Vaus.
