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Scottish Court of Session Decisions >>
Abraham Godfrey v Abraham Quesney. [1717] Mor 14650 (3 December 1717)
URL: http://www.bailii.org/scot/cases/ScotCS/1717/Mor3314650-030.html Cite as:
[1717] Mor 14650
Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. VI.
Action of Relief among correl.
Abraham Godfrey v. Abraham Quesney
Date: 3 December 1717 Case No. No. 30.
He who interposes as Cautioner for one of two co-obligants, and pays, comes only in place of the obligant, for whom he became cautioner, and is only entitled to his relief.
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Lewis and Abraham Quesney, having granted an English bond for £.35 Sterling, to one De Foy, Lewis enters into a submission, in Holland, with one Lereaux, as having right to that bond, and found Abraham Godfrey cautioner. There followed a decreet-arbitral decerning him to pay the sum in the English bond and others.
Abraham Godfrey having obtained a discharge, narrating that he had paid the said sum, as cautioner for Lewis, pursues Abraham Quesney for payment actione negotiorum gestorum.
It was alleged by the defender: Absolvitor for the one half; because the pursuer had paid the sum as cautioner for Lewis Quesney, who was liable to him in relief ex mandato. And in so far the defender could not be liable actione negotiorum gestorum; because ejus negotium non gessit, the defender being no submitter. And, in a parallel case, observed by Spottiswood, Libraik against David Vane, No. 47. p. 2118. voce Cautioner; where a bond being granted by a principal and cautioner, and a bond of corroboration granted by the cautioner, with another cautioner; the last cautioner recurring against the principal, it was found that all exceptions that would have been competent to the principal against the cautioner, in the original bond, were competent to him against the cautioner in the bond of corroboration. This case is parallel; for the pursuer having intervened as cautioner for Lewis, if Lewis were pursuing, the defender would allege, that being a co-principal, bound conjunctly and severally, he could not have insisted against the defender but for the one half.
It was replied: That the pursuer interposing, as cautioner, in a new and corroborative security, he interposed in contemplation of relief, from all the obligants, in the original bond, as has been several times found.
It was duplied, That a cautioner interposing in a corroboration may recur upon all the former obligants for whom he interposes as cautioner; but he who becomes cautioner for any one, and pays, does only come in place of the person for whom he becomes cautioner.
“The Lords sustained the defence as to the one half, and found that all defences competent against Lewis were competent against the pursuer his cautioner; and the pursuer having reclaimed by a bill, the Lords, on the 11th, adhered.”
Fol. Dic. v. 2. p. 379. Dalrymple, No. 186. p. 242.
