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Scottish Court of Session Decisions >>
Patrick Buchanan, Merchant in Glasgow, v John French, Merchant there. [1713] Mor 14661 (00 June 1713)
URL: http://www.bailii.org/scot/cases/ScotCS/1713/Mor3314661-037.html Cite as:
[1713] Mor 14661
Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. VIII.
Relief Competent to a Cautioner against the Principal Debtors.
Patrick Buchanan, Merchant in Glasgow, v. John French, Merchant there
1713.
June. Case No. No. 37.
Extent of cautioner's relief from co-principals.
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William Thomson, John Story, and John French, as principals, and Patrick Buchanan, as cautioner far them, having granted bond conjunctly and severally for 1,000 merks to John Acheson, wherein the three principals obliged themselves to relieve one another pro rata, and to relieve the cautioner in general terms, without mentioning either pro rata, or conjunctly and severally; in a process at the instance of Patrick Buchanan the cautioner, who paid the debt upon distress, and took assignation from the creditor for his relief, against John French, one of the co-principals;
The Lords found John French liable to relieve Patrick Buchanan in solidum, and not pro rata for his own third part only; albeit the co-principals stood not obliged in the bond to relieve him conjunctly and severally, but only to relieve him in general; in regard, the co-principals being bound to the original creditor conjunctly and severally, were also bound so to the cautioner, who interposed conjunctly and severally for them, and by payment upon the assignation, came in place of the creditor; for the cautioner's relief must be equal to his obligation.
