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Scottish Court of Session Decisions >>
Leitch v Haderwick. [1680] Mor 2077 (10 July 1680)
URL: http://www.bailii.org/scot/cases/ScotCS/1680/Mor0502077-010.html Cite as:
[1680] Mor 2077
In what cases a Cautioner may remain Bound, where the Principal gets Free.
Leitch v. Haderwick
Date: 10 July 1680 Case No. No 10.
A pactum de non petendo made to the principal, frees not the cautioner.
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Leitch of Mousie pursues Mr Andrew Haderwick for repetition of a sum paid by him to.——his cautioner, upon the clause of relief, albeit Mr Andrew had promised never to trouble the principal party; which ought to liberate the cautioner, seeing the principal party thereby was free; which being referred to Mr Andrew's oath, he deponed, that the pursuer having disponed to him his moveables, he promised never to trouble him for his debt, by any distress, real or personal, but with express reservation, ‘that he might distress the cautioner for what he wanted by the disposition of the moveables.’
The Lords found, that the promise not being simply, but with that reservation, ‘that he might distress the cautioner,’ it could not exclude him from distressing the cautioner; yet that he could not assign to him the debt, but leave him to seek his relief by the clause of relief.
