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William Smeiton v Laird of Kininmond. [1684] Mor 14641 (00 March 1684)
URL: http://www.bailii.org/scot/cases/ScotCS/1684/Mor3314641-020.html Cite as:
[1684] Mor 14641
Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. VI.
Action of Relief among correl.
William Smeiton v. Laird of Kininmond
1684.
March. Case No. No. 20.
Effect of as signation obtained by one of a number of cautioners?
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Five or six persons having put out a caper, and a prize being recovered by the stranger-owner, after it was adjudged, and they all decerned in solidum; one of them being distressed for the whole, paid it, and took assignation for his relief; and thereon pursued another of the owners of the caper, who alleged, That he could be liable but for his own share.
Answered: Though a cautioner pursuing upon the clause can distress only effeiring to the relief, yet a cautioner, procuring assignation of the whole debt, may pursue any one of the co-cautioners for the whole, allowing his own share; and the pursuer is in a much stronger case than of a cautioner, viz. one of a society, where is equalis contributio lucri et damni.
The Lords found, That the pursuer, having an assignation, might pursue the defender for the whole, with the deduction of the pursuer's own share, and of the shares of the notourly insolvent co-partners.
Fol. Dic. v. 2. p. 379. Harcarse, (Cautioners) No. 241. p. 57.
