Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. VI.
Action of Relief among correl.
Arnold of Barncaple v. Gordon of Hohn
Date: 23 February 1671 Case No. No. 19.
What claim has the cautioner in a suspension against the cautioners in the principal deed?
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There being four cautioners in a bond, and the principal debtor having suspended, and found a cautioner in the suspension; who having been distressed, and paid the debt, and having gotten assignation from the creditor, charges one of the cautioners in the first bond, Gordon of Holm; who suspends, on this reason, that payment being made by the cautioner in the suspension, he can only have recourse against him for whom he was cautioner, but not against his cautioners in the principal bond; for, as to them, it is all one as if the principal debtor had paid; 2dly, Though the cautioner in the suspension could have access against the cautioners in the principal bond, yet, all of them being cautioners for the same principal they must bear equal burden, and so he must allow his own fifth part, in the same manner as cautioners in a bond of corroboration bear equal burden with the cautioners in the principal bond.
The Lords found, That the cautioner in the suspension had access against the cautioners in the principal bond, he always deducting his own fifth part.
