Relief among Co-debtors, and whether the Creditor, upon payment, is bound to assign in order to operate relief.
Monteith v. Rodger
Date: 27 January 1675 Case No. No 7.
Found in conformity with No 2. p. 3346.
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Monteith and John Rodger being conjunct cautioners, there is a pursuit against Monteith, at the instance of an assignee to the bond, for payment of the debt; in which pursuit it was alleged, that the samin being to the behoof of John Rodger, who was conjunct cautioner, Monteith the other conjunct cautioner, could only be liable for a half, because if Rodger himself were pursuing for the whole, Monteith might relevantly allege, that his co-cautioner could not distress him for the whole, but behoved to allow his own half. It was answered, That in this bond there is no clause of relief amongst the co-cautioners; so that one of them getting assignation from the creditor, as being in the creditor's place, may distress the other for the whole. It was replied, that correi debendi are liable for mutual relief, though there be no express clause of relief, which though it uses to be adhibit, ad majorem evidentiam, yet it is implied ex natura rei, in respect that both parties being liable in solidum to the debtor, any one paying, doth not only liberate himself, but all the rest, which being utiliter gestum, obliges all for relief of their shares, as hath been decided by the Lords oft times in the case of co-principals; and the reason is the same amongst co-cautioners, and was so decided amongst co-cautioners, January 14. 1673, Scot contra Douglas, (See Appendix.) It was duplied, That co-principals have a ground of mutual relief, because as to the one half they are co-principals, but as to the other half they are mutually cautioners, and so they do engage upon the mutual desire or mandate each of other, et tenetur ex mandato, but co-cautioners do not engage upon the desire of either of them, but upon the desire of the principal debtor; and therefore inter se nullum habent negotium; upon which account by the civil law they have no relief, nisi ex pacto. It was triplied, that by the Roman law correi debendi had exceptionis, divisionis, ordinis et actionum sedendarum; by which they were not obliged to pay the creditor till he assigned his right, which doth not quadrate with our customs, whereby co-principals have oft times been found liable without an express clause of relief, and without assignation from the creditor; and there is the same reason amongst co-cautioners, when one by his act relieves all.
The Lords found that the co-cautioners were liable for mutual relief, without an express clause of relief.
Fol. Dic. v. 1. p. 221. Stair, v. 2. p. 312.*** Dirleton reports the same case:
1675. January 5.
It was debated this day among the Lords, whether a bond being granted by a principal and two cautioners bound conjunctly and severally; and the cautioners not bound to relieve one another; if one of the cautioners should take assignation to the bond and should pursue the other, the said other cautioner will have a defence upon that ground, That albeit they be not obliged to relieve one another pro rata, yet that the said obligement inest, in so far as they are bound conjunctly and severally; most of the Lords inclined to find, that the pursuer ought to relieve the co-cautioner pro rata and had not action but for his own part. But some of the Lords were of another opinion, that there being no obligement upon any of the co-cautioners to relieve one another; one of the cautioners paying entirely and getting an assignation, in effect emit nomen: And though both the cautioners be obliged conjunctly and severally in relation to the creditor, yet there is no transaction or obligement betwixt the cautioners themselves; every one having actio mandati as to the principal for their relief, which inest, though the principal were not bound to relieve them expressly; but ought to be considered as quilibet, and strangers to one another.
But because the Lords were divided, and it was alleged on either hand, the case was formerly decided; the decision was delayed this day.
January 27. 1675.—In the case above mentioned, 5th January instant, concerning con-cautioners obliged conjunctly and severally for the principal, without a clause of mutual relief; The Lords found, That one of the cautioners having paid and taken assignation, the others had a good defence against him for his own part, notwithstanding of the reasons there above mentioned; and that it was urged, that the co-cautioner could not be forced to relieve the defender if he had paid the whole; seeing he had neither actio mandati, there being none given by either of the cautioners to others; nor was obliged to relieve the other cautioners by an express clause, which is ever insert, when mutual relief is intended; and that this is clear law, it appears from the title of the civil law de Fidejussoribus ff. lib. 46. tit. 1. leg. 39. Et leg. 36. ibid. Et leg. 11. cod. eod. tit.
The Lords decided, as said is, in respect of a practique produced betwixt in anno relating to a former practique in anno
