Scottish Court of Session Decisions

Subject_1 CAUTIONER.

Sir Robert Pollock
v.
Mrs Lockhart

1745, July 10.
Case No. No. 16.

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Thomas Pollock as principal and Sir Robert Pollock as cautioner, granted bond for L.1000. Thomas died within the seven years. After his death Sir Robert Pollock, and James the brother of Thomas, joined in a bond of corroboration, not only of the debt, but also another small debt of L.150 due by the defunct, in which neither of them was bound, and proceeding on the narrative that the creditor has “at our desire superseded payment,”—therefore they jointly and severally bind them, &c.;—and James having paid the debt, his executrix pursued Sir Robert for a total relief. The defence was, that he was only a co-cautioner, and therefore only liable pro rata according to the decision 15th December 1722, Murray of Broughton, and 19th December 1738, Mr Lockhart against Lord Semple. The voucher of the debt of L.150 was not produced, and therefore there could be no judgment as to it; but as to the L.1000, the answer was, that here it must be presumed that James Pollock interpreted at Sir Robert's desire, because they joined in the bond when the cautionry in the former bond was near expiring, whereas in Brought tori's case the new cautioner acceded in a bond with the principal debtor, or one of them, and in Mr Lockhart's case he became bound alone in the corroboration. The Lords found Sir Robert liable in a total relief, and adhered to Drummore's interlocutor, renit. inter alios Tinwald et me.