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United Kingdom House of Lords Decisions |
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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Alexander Murray, of Broughton, Esq; Ex parte v. Captain James Butler, Nephew and Heir of Sir George Maxwell of Orchardton, and the Creditors of the said Sir George [1724] UKHL Robertson_465 (21 March 1724) URL: http://www.bailii.org/uk/cases/UKHL/1724/Robertson_465.html Cite as: [1724] UKHL Robertson_465 |
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Page: 465↓
(1724) Robertson 465
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 105.
Subject_Solidum et pro rata. —
A debtor grants bond with a cautioner, and afterwards a bond of corroboration with a different cautioner; the money is paid by the cautioner in the corroboration; but he had only relief against the cautioner in the original bond for one half of the sum paid.
In September 1674, Sir Alexander MacCulloch, and Godfrey his eldest son as principals, and Sir Robert Maxwell of Orchardton as cautioner, executed a bond to Alexander MacGhie for 2000 merks Scots.
After the death of Sir Alexander MacCulloch, the money not having been paid, the said Godfrey, then Sir Godfrey his son as principal, and Alexander Viscount of Kenmure, and Richard Murray of Broughton, (the appellants father), as cautioners, in October 1679, executed a bond of corroboration to the said Alexander MacGhie, reciting the original bond, and that the creditor was contented to delay payment upon granting to him such corroborative security: therefore the said principal and cautioners, in further corroboration of the said bond, and without hurt or prejudice thereto, or derogation therefrom in any fort, sed accumulando jura juribus, bound and obliged themselves to make payment of the said principal sum, with interest from Martinmas 1679, and this bond of corroboration contained an obligation from the principal to the cautioners for their relief and indemnity.
The money not being paid, the creditor brought his action before the Court of Session, against the appellant as son and heir to the said Richard Murray; and the appellant was decreed to pay the principal sum and interest, for which his father had become security. The creditor in the said bonds thereupon assigned the same to him for his relief against the other persons bound.
The appellant brought his action before the Court of Session, for payment of the said sum of 2000 merks Scots, and interest contained in the original bond; to which action the respondent Butler, and some of the creditors of Sir George Maxwell, son and heir of Sir Robert Maxwell, the cautioner in the original bond, became parties. In this action the appellant contended, that he was cautioner or security for the payment of the money due by the original bond, and that as to him, all the persons bound therein Were principals; and he having paid the money, was entitled to relief, and to recover his payment from all or any
Page: 466↓
The Lord Ordinary, on the 29th of November 1721, “Found that the appellant could only have relief for the half of the sum he had paid to the creditor.” And to this interlocutor the Court adhered on the 15th of December 1722, and 18th of June 1723.
Entered, 21, Jan. 1723–4.
The appeal was brought from “an interlocutor of the Lord Newhall, Ordinary, of the 29th of November 1721, and the affirmances thereof by the Lords of Session the 15th of December 1722, and 18th of June 1723.”
Heads of the Appellant's Argument.
The very title of the bond of corroboration, as well as the stile, express the mind and intention of the parties contracting to have been, and the terms under which they became bound import, that it is granted to the creditor as a further security of the former bond. The principal and cautioners in the first bond became all as principals with regard to the persons bound as cautioners in the corroboration, who thereby became cautioners to the creditor for them. The first bond continued to all intents and purposes the same as before; and the bond of corroboration was only given as a further security to the creditor, in case the principals and cautioners in the first bond should become insolvent. But in case the creditor should compel the cautioners in the bond of corroboration to pay the debt, then they were to be relieved by the persons for whom they were bound as cautioners, both principals and cautioners in the original bond being bound for their relief. It is certain, that if the cautioners in the first bond had paid the debt, they could only have taken an assignment for their relief against the principals, and could never have had access against the persons bound in the corroboration, who were only cautioners for them. Had the appellant, when he paid the bond, taken any assignment in the name of a third party, the respondent the heir must then, without question, have paid the debt, and had relief only from the principals, for whom his ancestor was cautioner. So the Court had found in parallel cases, particularly Clarkson against Edgar, 1st December 1703, and Brock against Lord Bargeny, 14th February 1705. This is agreeable both to law and equity; for the bond of corroboration was a transaction directly with the creditor, and only for his advantage, without the least intention of any alteration in the first bond, or benefit to the parties bound in it, except to procure from the creditor a larger time for them to pay the debt.
Judgment, 21 March 1723–4.
This day having been appointed for hearing the cause Ex parte.
Counsel for the appellant only attending, they were called in and heard, and withdrew; and after due consideration and debate had of the merits of this cause.
Page: 467↓
It is ordered and adjudged, that the petition and appeal be dismissed, and that the said interlocutor, and affirmances thereof, therein complained of, be affirmed.
Counsel: For Appellant, Dun. Forbes. Will. Hamilton.
