Scottish Court of Session Decisions

Subject_1 CAUTIONER.
Subject_2 SECT. VII.

Relief of Cautioners.

David Campbell of Clochombie,
v.
Neil Campbell of Duntroon

Date: 18 July 1775
Case No. No 60.

A distressed cautioner, when coming against his co-cautioner, for his share of the debt in which they were jointly bound, found compellable to communicate to him an heritable security upon the debtor's estate, made over to himself, by the person who had interposed for the debtor's relief.

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John Campbell of Clochombie, now deceased, and James Campbell of Balinaby, were bound with Major Donald Campbell of Castlesween, in a bond to the Bank of Scotland, for L. 650 Sterling.

Mr Campbell of Duntroon, and David Campbell now of Clochombie, became bound with the Major, in another bond of L. 700 Sterling, to Mr Lockhart.

The Major being called upon to pay these and other debts, to the amount altogether of L. 4000 Sterling, Colonel Donald Campbell, in order to relieve him, paid the debts to the bank, and to Mr Lockhart, and took assignments to them, and likewise advanced the remainder of the L. 4000; and he at the same time got from the Major an heritable security upon his estate. And some time afterward, the Colonel having received payment of his whole sums advanced, from Clochombie, he assigned in his favour the debts and securities, in the same way as they stood in his own person. And Clochombie now claiming from Duntroon one half of the L. 700 bond, in which they were joint cautioners for Major Campbell; it was

Pleaded on behalf of Duntroon: That he was not obliged to make payment of any part of the debt, without being assigned to a proportional part of the heritable security: That co-cautioners are considered in the eye of law, as so many socii or co-partners, so that, whatever loss may in the issue accrue from the joint obligation, it must fall equally upon all; in the same way as in a society, whatever loss there is at the winding up of the co-parinery concern, it divides equally among all the co-partners.

Answered: That Clochombie was willing to assign the debt to the extent of the half which Duntroon was to pay, if he desired such an assignation, in order to enable him to operate his relief against the principal debtor Major Campbell; but that he was not bound to convey the heritable security, which stood in his person for the whole of the above debts, at least he was not bound to convey it to his own prejudice, or so as to enable any other person to compete with him; but he had no objection to convey it, reserving a preference to himself for the whole sums due to him; and he apprehended he could not be obliged to assign in any other terms, being entitled to keep up the security for his own behoof, till the last shilling of the sums due to him was paid; for that the principle contended for, of an alleged co partnery or society among cautioners, has no solid or legal foundation in the case of a security obtained by one of the cautioners, for his own relief.

The Court did not adopt Duntroon's doctrine of a society here, but rather viewed Clochombie in the light of a negotiorum gestor, and the following judgment was pronounced:

‘The Lords find, That Clochombie is entitled to apply said heritable security for relief and payment of the first and last of these debts, (viz. the debt to the bank, and balance advanced by Colonel Campbell,) and in so far is not bound to communicate it, or any part of it, to the petitioner. But as to the debt originally due to Mr Lockhart, find, he must communicate said heritable security to the petitioner, to the effect that any loss on that debt may be borne by him and the petitioner proportionally, but not to compete with the respondent as to the other two debts.’

Act. Ilay Campbell. Alt. Rolland. Clerk, Tait. Fac. Col. No 182. p. 102.