Scottish Court of Session Decisions

Subject_1 SOLIDUM ET PRO RATA.
Subject_2 SECT. VI.

Action of Relief among correl.

Alison and Black
v.
Mr James Hart.

Date: 27 February 1701
Case No. No. 25.

Cautioner in a bond of corroboration.

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Thomas Cessford, the said Mr. James, and another, having granted bond to one Handyside for 1,000 merks, and the creditor afterwards craving farther security, Cessford did prevail with Black to bind with him in a bond of corroboration. Cessford being broke, Handyside distresses Black, and causes him pay the whole, and takes an assignation in one Alison's name to the first bond, and thereon causes charge Mr. James Hart; who suspends on this reason, that William Black, the charger's cedent, standing bound in a bond of corroboration as co-principal with Cessford, who was indeed the principal debtor, Black is as much co-principal as if he had been in the first original bond, and so must deduct his own part, and can only insist against Mr. Hart for his proportion pro rata, his security being only accumulando jura juribus. Answered for Black, That though I be bound conjunctly and severally, yet, ex natura rei, I am only a cautioner, and the very bond carries, that Cessford, the co-principal, had received the money before, and so I only accessi ejus obligationi, which is the definition of a cautioner; and law looks more to things than words, according to that rule plus valet quod agitur quam quod simulate concipitur; they, in the first bond, are all principals as to me, and therefore they must relieve me of the whole, without deducting of any part, and every one of them is as much bound in solidum to relieve me as Cessford was; and on the view of this security and relief, I did the more frankly engage in the corroboration; and though I be engaged conjunctly and severally, and as correus debendi et promittendi to the creditor, for his security, which was just; yet, by these words, hoc non agebatur, to cut me off from my full relief against the principals in the first bond. Replied, The common law ex epistola divi Hadrian: has introduced inter correos debendi beneficium divisionis, which privilege and exception is competent, whether they be bound in the same obligation, or in different ones, L. 3, D. De duob. reis, “parvi refert simul spondeant, an separatim promittant, cum hoc actum inter eos sit, ut duo rei constituantur, et ut nulla sit novatio;” neither does it import which of them get the money, L. 4. C. Eodem Tit. and therefore Mr. Black is as much bound as if he had been one of the co-principals et correi debendi in the first original obligation, and cannot force Mr. Hart to pay the whole; and the Lords found so in a more favourable case, Arnold contra Gordon, No. 19. p. 14641. that a cautioner in a suspension having paid the debt, and recurring against the obligants in the first bond, the Lords found he was bound to deduct his own part. The Lords thinking the case in apicibus juris, betwixt equity and strict law, they resolved to hear it argued in their own presence in the beginning of June next.

This case was submitted.

Fountainhall, v. 2. p. 111.