Scottish Court of Session Decisions

Subject_1 CAUTIONER.
Subject_2 SECT. VII.

Relief of Cautioners.

Milligan
v.
Glen

Date: 20 May 1802
Case No. No 65.

A cautioner obtaining security in relief to himself, is bound to communicate the benefit of that security to co-cautioners.

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Glen and Milligan, were co-cautioners for Mouncie in a bond of credit.—Glen obtained for himself an heritable security in relief.

Mouncie became insolvent; and the heritable property over which Glen had security, was sold by trustees appointed by Mouncie. The proceeds were received by Glen, who paid to the bank the half of the sum due by Mouncie upon his cash-account. Milligan, the other cautioner, having been forced by diligence to pay the balance, brought an action against Glen for relief of one half of this balance.

Pleaded for Glen: He had already paid one half of the debt, and could be liable for no part of the other half.

Answered: The sum paid by Glen did not come out of his own pocket, but out of the funds of the bankrupt; and although Glen had obtained an heritable security, ex facie to himself only, he was bound to communicate the benefit of it to his co-cautioner.

The Court having judged of the cause on informations, decerned against the defender in terms of the libel; thereby deciding, in conformity with opinions delivered on the Bench, that a cautioner obtaining a security in relief to himself, which has the effect of operating payment of the debt out of the funds of the principal debtor, is bound to communicate the benefit of that security to co-cautioners.

Act. Morison. Alt. Corbet. Clerk, Pringle.