Subject_1 DEBTOR AND CREDITOR. Subject_2 SECT. III.
A Creditor receiving payment from a Cautioner, must assign every separate security for the debt. By passing from his separate security he liberates the Cautioner.
Hugh Wallace of Inglistoun v. The Lord Elibank
Date: 25 January 1717 Case No. No 38.
A cautioner cannot arbitrarily discharge his diligence done against one co-reus debendi, to the hurt of the rest, who have a right to claim assignation.
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The Lord Elibank being charged as cautioner for John Auchmouttie, he suspended on this reason, That Murray of Spot was also bound for the same debt, and the charger having denounced him, did afterwards consent to his relaxation; and the gift of Spot's escheat being taken upon several hornings, whereof the charger's was one, the charger did insist for payment of the debt in the horning, out of the escheat goods, and was excluded in that pursuit by the consent he had given to the rebel's relaxation; whereby my Lord Elibank was prejudged of the relief that was competent to him against Spot; for, if the charger had not consented to the relaxation, the half of the debt would have been paid by Spot's escheat goods, and the suspender has paid the other half, and therefore the letters ought to be suspended.
It was answered; The creditor takes cautioners one or more for his own security, and he may do diligence, or forbear it, or discharge it, when it is done, at his pleasure, which, a co-cautioner cannot quarrel.
It was replied; If the creditor have more cautioners, and should discharge one of them, the co-cautioner would be liberated from that share, to which the co-cautioner discharged, would be liable to relieve the other cautioners; because a cautioner paying has the beneficium cedendarum actionum. And if the principal have done any deed to make the relief ineffectual, either by discharging a co-cautioner, or, which is the same thing, by passing from any diligence which would have operated his payment, and the other co-cautioner's relief, he is obliged to make up the damage to the co-cautioner; and in this case, Spot's escheat would effectually have operated the charger's payment.
‘The Lords found the charger liable to make up the damage sustained by the suspender, by consenting to relax Spot the co-cautioner.’
Nota, That Spot was not bound in the original bond, bat only in a corroboration; in which they varied from what was found in a like case, Clerkson contra Edgar, voce Solidum et Pro Rata.; and 14th February 1705, Brock contra the Lord Bargainy, Ibid.; but there were decisions on the other side also condescended on; so that there is no fixed rule in this point.
Fol. Dic. v. 1. p. 226. Dalrymple, No 167. p. 231.
