Scottish Court of Session Decisions

Subject_1 CAUTIONER.

SirRobert Pollock
v.
MrsLockhart

Date: 10 July 1745
Case No. No. 16.

Relief among cantioners.

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Sir Robert and James Pollocks joined in a bond of corroboration of a former bond of L.1000 Scots, by the then deceased Thomas Pollock as principal, and Six Robert as cautioner, and another small debt due by Thomas Pollock alone of L.160 Scots, upon the narrative that the creditor had at their desire superseded payment to the term underwritten, therefore binding them conjunctly and severally. James Pollock paid the debt, and his relict and executrix sued Sir Robert for re-payment of the L.1000; (for the note for the L.150 was lost;) and the Lords found him bound to relieve James Pollock of the whole L.1000, and that he was not to be considered as a co-cautioner with him; and they distinguished this case from that of Murray of Broughton and Orchardton in 1722, where the new cautioner acceded in a corroboration with the principal debtor; and from the case Lockhart against Lord Semple, (No. 9.) where the new cautioner acceded in a corroboration by himself alone, and had a bond of relief from the principal debtor; whereas here the new cautioner acceded in a corroboration with the first cautioner, whom therefore they considered as principal in the corroboration; though certainly he could not be so as to the debt of L.150; and it had influence that his cautionry was near expiring, and therefore his first bond registrated, when the corroboration was granted. Vide No. 23. infra. (See Dict. No. 58. p. 2125.)