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Scottish Court of Session Decisions >>
Andrew Ker v Constable of Dundee. [1610] Mor 9427 (12 July 1610)
URL: http://www.bailii.org/scot/cases/ScotCS/1610/Mor2309427-003.html Cite as:
[1610] Mor 9427
A promise made by one of three cautioners, that he, and another of the cautioners, should bear equal burden with the third, of the sum, altho' in effect not accepted by the third cautioner, in so far as he had caused the creditor charge one of the cautioners for the whole sum, yet was found obligatory, and the cautioners reason of suspension founded thereupon was found relevant.
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Parbroth as principal, and the Constable of Dundee and Dalhousie as cautioners, being bound to John Wemyss for 4000 merks, and he making Strakmertoun assignee, Strakmertoun making Dalhousie, and Dalhousie making Andrew Ker assignee to Parbroth's bond, Andrew charged the constable, who suspended, that Andrew could not charge, because, by his missive, he had promised that he and Dalhousie should bear burden for their parts of the sum, the Constable doing the like for his third, as was agreed, by communing betwixt them, and so Andrew could only charge for the third. Andrew answered, That his offer could not bind him, not being accepted by the cautioner, but in effect rejected and refused; because he had thereafter caused Strakmertoun charge Dalhousie for the hail sum, under the pain of horning, and thereby forced Dalhousie to give him a bond for the hail sum; notwithstanding whereof, the Lords found the reason of suspension relevant against my Lord Chancellor's vote.
