Scottish Court of Session Decisions

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.

Brodie
v.
Keith

Date: 27 July 1672
Case No. No 44.

A cautioner transacted an old debt for a less sum, and took assignation in a third party's name for his behoof. That party was found entitled to no more, than the share of what was truly paid.

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The laird of Innes and Alexander Keith being co-cautioners in a bond, Innes being distressed, did pay the whole sum, and took an assignation to the bond, blank in the assignee's name, which he filled up with the name of Joseph Brodie; who having charged the said Alexander Keith, he suspended upon this reason, that the charge was to the behoof of the Laird of Innes, who being cocautioner, was obliged to relieve the suspender of the one half. It was answered for the charger; that he was content to restrict the charge to the one-half of the sum contained in the bond. It was replied for the suspender; that the one co-cautioner, albeit assignee, could not distress the other co-cautioner further than for a proportionable part of his own true distress, of what he really paid; for, as in warrandice, how ample soever, recourse is only effectual for the true distress; so likewise it ought to be betwixt co-cautioners by the clause of relief, which is a mutual warrandice. The charger duplied, that the creditor might have gifted to him the whole sum, which ought not to be profitable to any other. The suspender triplied, that there is no donation, but the debt being very old, and doubtful whether it was paid by the principal, there was a transaction by the one cautioner for a lesser sum.

Which The Lords found relevant, and restricted the charge to the one half of the sum agreed for, and paid by Innes.

Fol. Dic. v. 1. p. 227. Stair, v. 2. p. 111.