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Scottish Court of Session Decisions >>
Muire of Glanderston v Chalmers of Gadgirth. [1682] Mor 14654 (2 February 1682)
URL: http://www.bailii.org/scot/cases/ScotCS/1682/Mor3314654-032.html Cite as:
[1682] Mor 14654
Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. VII.
If any of the correi prove insolvent. - When several Persons have been found liable in solidum, whether passing at the Bar from one of them extinguishes his Part of the Obligation, or if it falls on the rest.
Muire of Glanderston v. Chalmers of Gadgirth
Date: 2 February 1682 Case No. No. 32.
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Four persons in a bond for money being bound conjunctly and severally to the creditor, and each of them, in the clause of relief, being to pay for their own part, and bear equal burden with other, one of the four correi became bankrupt; and Ralston, another of them, paid the whole debt, and took assignation from the creditor, and pursued another correus for the three parts, deducing his own fourth.
Alleged for the defender: That he ought to have allowance for a fourth part of the bankrupt's proportion.
Answered: They are not bound conjunctly and severally by the clause of relief, but only for their own parts; and as they would not have been obliged to the creditor for that bankrupt's part, had the principal obligement been so conceived, neither can they be obliged for it to one another, according to the terms of the relief.
Replied: By the clause of relief, they are to bear equal burden with other, which imports an equality of loss by the cautioner; and if the pursuer did not bear as great a part of the loss, by the insolvency of the correus, as the defender, there would be an inequality.
The Lords-sustained the allegeance and reply.
Fol. Dic. v. 2. p. 380. Harcarse, (Cautioners), No. 237. p. 56.
*** A similar decision was pronounced, 26th December, 1707, Cleghorn against Yorston, No. 2. p. 14624.
