Relief among Co-debtors, and whether the Creditor, upon payment, is bound to assign in order to operate relief.
Dame Margaret Home v. David Crawford
Date: 10 July 1666 Case No. No 4.
A cautioner, upon payment, craved assignation against his co-cautioner. The Lords found the creditor not obliged to assign, the cautioner being sufficiently secured in law by his action of relief.
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Umquhile John Earl of Loudon as principal, David Crawford of Kers, with eight others, as cautioners for him, being debtors to Dame Margaret Home, Lady Loudon, for payment making to her of the sum of 2700 merks yearly, during her lifetime, at the terms mentioned in the contract, passed amongst the parties, all the cautioners and principal being dead, except David Crawford, and he being charged, and having suspended, he only craved, that, in regard the contract bears no mutual clause of relief, and that he is the only person charged, the Lords would be pleased, upon payment of the money by him, to ordain the charger to assign the foresaid contract to the suspender, that he may obtain his relief. And it being controverted, whether the charger was obliged in law to assign the suspender to the contract, that he might get his relief from the remanent cautioners;——The Lords found, that the charger was not obliged to assign against the rest of the cautioners; but that the suspender having paid, the law would supply the defect of the clause of the relief, which grants action to the cautioners for pursuing the remanent cautioners, according to the civil law;—in Novell. 4. c. 2.
Fol. Dic. v. 1. p. 211. Newbyth, MS. p. 71.
*** This case is also reported by Stair, voce Cautioner, No 38. p. 2112.
