Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Edmiston v. Jo Rodgek.
1675.
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They tell of a case in 1675, between one Edmiston, and one Jo. Rodger, the agent. A debtor and two cautioners having granted bond for a sum of money; the bond contained a clause of relief from the principal to the two cautioners, but no clause of relief amongst the two cautioners themselves. One of the cautioners being distressed for the whole, pays it, and takes an assignation in a blank person's name, and thereafter fills up a confident's name therein; who, pursuing the concautioner for the haill, he suspended on this reason, that he was only liable for the half, and the debt being paid by the concautioner's means, he behooved to defaulk the one half and allow it. Answered, there being no clause of relief between the cautioners, the one is not bound to relieve the other. The Lords found the clause of mutual relief among the concautioners quod inerat de jure, and they were bound to defaize their own parts one to another pro rata portione, though there was no clause, paction, or obligement tying them thereto. I think this would not hold in the civil law, and was a stretch thereof, and dissonant to its principles. In June, 1677, the same case occurred to be disputed again. Vide February, 1680.
