Scottish Court of Session Decisions

Subject_1 CAUTIONER.
Subject_2 SECT. VII.

Relief of Cautioners.

Kincaid
v.
Leckie

Date: 7 February 1665
Case No. No 48.

Found in conformity with No 43. p. 2115.

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In an action pursued at the instance of——Kincaid against the Lairds of Leckie and Boquchan, it was found, that where, in a bond bearing annualrent, the principal debtor was only obliged to pay the annualrent (and not the cautioner) during the not payment of the said principal sum; yet one of the cautioners being distrest, and the other cautioners being obliged to relieve him pro rata of all cost, skaith, and damage, they are liable to the cautioner who was distrest, for payment of annualrent since his distress and payment; and also found, that the cautioner being assignee, may seek payment of the hail sum, except his own proportion; just as the principal creditor might do, though the cautioners be obliged to relieve others pro rata only. See Solidum et Pro Rata.

Gilmour, No 124. p. 91.