Subject_1 DEBTOR AND CREDITOR. Subject_2 SECT. IV.
One entitled to relief getting an ease upon payment, can claim no more than the transacted sum.
Haliburton v. Haliburton
Date: 6 February 1702 Case No. No 45.
A cautioner upon paying a debt obtained an ease from the creditor. The Lords incliaed to think he ought to communicate the eases he got, yet they allowed him to be further heard.
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Haliburton of Fodderance, having been cautioner for the deceased Haliburton of Pitcur, to one Paton, in the sum of 2000 merks, and Pitcur being forfeited, Fodderance pays the debt, and takes an assignation, and thereon pursues this Pitcur, as representing on the passive titles. Alleged, You must declare quo titulo you pursue; for if it be qua assignee, then no process can be sustained at your instance, because the bond assigned to you being heritable, it bears a clause of requisition on forty days, which has not been used; and if you insist as cautioner, then you cannot have the whole, because I offer to prove you got an ease, whereof I must have the benefit, for you can exact no more than you gave. Answered, He is not obliged to declare nor elect, but may use any of his titles as he sees them most convenient for him; for he pursues here tanquam quilibet et emptor nominis, and neither as cautioner nor negotiorum gestor: And though he insisted as cautioner, it has been found that a co-cautioner taking assignation, though he got an abatement, yet he was not bound to communicate the benefit thereof to the cautioner, as Stair observes, 8th July 1664, Nisbet contra Leslie, No 43. p. 3392.; and 7th February 1665, Kincaid and Leckie, No 48. p. 2118., marked by President Gilmour. Replied, That the contrary has been found in a co-cautioner taking assignation, and recurring against the other cautioner, that he could acclaim no more from him than what he had paid out, 27th July 1672, Brodie contra Keith, No 44. p. 3393.; and therefore a paritate rationis the same ought to hold in a cautioner taking assignation against the principal. The Lords found he ought to declare and elect his title, and if he insisted under the reduplication as assignee, he behoved first to use requisition; and that the raising this process was not equipollent thereto, as was contended by Fodderance; and if he pursued as cautioner distressed, though they inclined to think he ought to communicate the eases he got, yet they allowed him to be further heard thereupon.
Fol. Dic. v. 1. p. 227. Fountainhall, v. 2. p. 143.
