Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. VI.
Action of Relief among correl.
Agnes Loch, and Lord Strathallan, v. Lord Nairn
Date: 18 December 1701 Case No. No. 26.
The same subject.
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John Graham, post-master, and Lord Nairn as cautioner, granted bond to Mr. John Colvill, advocate, for £.1000 Scots. Agnes Loch, as relict and executrix to the creditor, takes out caption against John Graham the principal, who to prevent incarceration, grants a new bond of corroboration, narrating the former bond, and in this Strathallan is cautioner, who at last pays the debt to Loch, and takes a discharge and assignation, and in his cedent's name he pursues Nairn to pay. Alleged, I cannot pay the whole; for, though it be in Loch's name, yet it is for Strathallan's behoof, and that being acknowleged, then he must be considered as a co-cautioner with the Lord Nairn, cautioner in the first bond, and therefore can only have recourse against the other cautioner, deducing his own part. Answered, There was no negotium gestum nor society betwixt Strathallan and the cautioner in the first bond; but I have acquired an assignation, tanquam quilibet, and I engaged the more frankly that I saw you antecedently bound, whom I considered as principal to me, and so bound to relieve me. This is nearly the same case with that marked supra, 27th February, 1701, Alison and Black contra Hart, No. 25. p. 14643. which was then ordained to be debated in presence, and was afterwards submitted, and the arguments on both sides may be read there; to which was added, that my Lord Stair owned himself to be of the opinion that he could not recur in solidum, Tit. 8. Of Recompence, § 8. with a decision from Spottiswood, Libraik against Vaus, No. 47. p. 2116. voce Cautioner; and Lib. 1. Tit. 17. § 20. Some of the Lords laid hold on this specialty to take it out of the general abstract point, that in the bond of corroboration the Lord Nairn is also mentioned as bound with Strathallan, but does not subscribe; and what if he offered to subscribe it now, in that case the relief would clearly divide, and Strathallan could no trecur in solidum. The Lords, by the plurality, found he had not relief in solidum, but only pro rata. It carried with a struggle.
Fol. Dic. v. 2. p. 379. Fountainhall, v. 2. p. 130.
