Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. VI.
Action of Relief among correl.
Hugh Wallace, Merchant in Edinburgh, v. Fleming and Cunningham of Barns
Date: 27 February 1685 Case No. No. 22.
A bond being suspended by the principal and cautioner, the cautioner in the suspension was found entitled to a total relief.
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Hugh Wallace is pursued by Fleming and Cunningham, as he who had become cautioner for Mr. John Wilky, in a second suspension. He alleged, The principal suspender, and the cautioner in the first suspension, were bound to relieve him, “et quem de evictione tenet actio eundem agentem repellit exceptio.” Answered, He could recur against the cautioner in the first suspension only quoad the half, they being, in the construction of law, as co-cautioners, and cited a decision in Stair, Arnold contra Gordon, No. 19. p. 14641. where it was so found. Replied, The first cautioner is a principal to the second, and, in contemplation thereof, the second engaged; L. 27. § 4. and L. 43. D. De fidejuss. “The Lords, on Kemnay's report, found the first cautioner bound to relieve Hugh Wallace, the second, in solidum; and therefore assoilzied him.”
Fol. Dic. v. 2. p. 379. Fountainhall, v. 1. p. 344.
*** Harcarse's report of this case is No. 4. p. 9450. voce Pactum de non Petendo.
