Scottish Court of Session Decisions

Subject_1 CAUTIONER.

Elizabeth M'Kenzie
v.
M'Kenzie

1753, Jan. 17.
Case No. No. 23.

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Martin and Blackhill were debtors in a bond of L. 100 sterling, and sometime after a bond of corroboration was granted by them two and Sir George M'Kenzie of Granville, and he got the debt to pay, and took assignation;—and now his relict, in his right, sues relief against Blackhill, who produced a bond of relief by Martin of the original bond, and insisted on being liable in relief only pro rata agreeably to the decisions of Maxwell of Orchardton and Murray of Broughton, and George Lockhart against Lord Semple. Answered, In these cases the new obligant acceded plainly on the faith of the principal debtor. In the first case, Sir Godfrey M'Culloch alone was bound with Murray of Broughton in the corroboration; and in the other Mr Lockhart was alone bound in the corroboration upon getting a bond of relief from the principal debtor Rosline; but in the case, 10th July 1745, the relict of Mr James Pollock against Sir Robert Pollock, she was found in her husbands right entitled to a total relief of a bond wherein Thomas Pollock was bound as principal and Sir Thomas expressly as cautioner, because in the corroboration only Robert and James were bound, whereby it was presumed that James acceded upon the faith of Sir Robert,—and here it does not appear that Sir George M'Kenzie knew who was principal and who cautioner. The Lords found the pursuer entitled to a total relief against Blackhill. Renit President and Milton. 17th January 1753 nomine con. adhered. It seems that both President and Milton had altered;—but as Sir George had taken a bond of relief from Martin alone, we agreed that that would not alter the case.