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Andrew Ker v Willam Gordon, Advocate. [1685] Mor 14641 (00 February 1685)
URL: http://www.bailii.org/scot/cases/ScotCS/1685/Mor3314641-021.html Cite as:
[1685] Mor 14641
Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. VI.
Action of Relief among correl.
Andrew Ker v. Willam Gordon, Advocate
1685.
February. Case No. No. 21.
Cautioner in a bond of corroboration.
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Bailie Riddel, as principal, and Andrew Ker, as cautioner, being bound to Isobel Chatto for a debt, which was afterwards corroborated by Riddel, as principal, and William Gordon, as cautioner, Ker paid the debt, upon distress and assignation from the creditor, and pursued William Gordon for the half.
Alleged for the defender: That the pursuer ought to relieve him, who, as cautioner in the bond of corroboration, was, in effect, cautioner for Ker, the cautioner in the first bond; and though Ker be cautioner, in respect of relief from Riddel, he must be considered as principal, in respect of the defender, as well as of the creditor; 2dly, By a clause in the bond of corroboration, it was to be null and void, upon payment of the debt, by virtue of the obligement in the first bond.
Answered for the pursuer: That cautioners in corroborations, and cautioners in suspension of the debt, are looked upon as co-cautioners with those in the principal bond, and ought to relieve one another pro rata.
The Lords found the defender liable for the half; and found, That the first clause in the bond of corroboration was only a provision against double payment.
Fol. Dic. v. 2. p. 379. Harcarse, (Cautioners) No. 243. p. 58.
