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Scottish Court of Session Decisions >>
Nisbet v Lesly. [1664] Mor 3392 (8 July 1664)
URL: http://www.bailii.org/scot/cases/ScotCS/1664/Mor0803392-043.html Cite as:
[1664] Mor 3392
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.
Nisbet v. Lesly
Date: 8 July 1664 Case No. No 43.
A cautioner transacted a debt for a lesser sum, and obtained assignation. The Lords found his co-cautioner was bound to relieve him of the half of the whole debt.
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John Nisbet as assignee constitute by Major Drummond, charges Lauchlan Lesly to pay four dollars for each soldier of sixty, conform to a contract betwixt Major Drummond and Lodovic Lesly, for whom Lauchlan was cautioner. Lauchlan suspends on this reason, that the charge is to the behoof of Francis Arneil, who was conjunct cautioner, and bound for mutual relief, and therefore he can ask no more than his share of what he truly paid in composition. The charger answered, that he nor Francis Arneil, were not charging on the clause of relief, but on the principal contract, as assignee; and though he had gotten assignation thereto gratis, he might crave the same, except his own part,
