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D. 228. 27. January 1675.
IN the case abovementioned, 5. January instant, concerning Con-cautioners obliged conjunctly and severally for the Principal, without a clause of mutual Relief: The Lords Found, That one of the Cautioners having payed and taken Assignation, the others had a good Defence against him for his own part, notwithstanding of the Reasons there abovementioned; and that it was urged, that the Co-cautioner could not be forced to relieve the Defen∣der if he had payed the whole; seing he had neither actio mandati, there being none given by either of the Cautioners to others; nor was obliged to relieve the other Cautioners by an express Clause, which is ever in∣sert, when mutual relief is intended: And that this is clear Law, it ap∣pears from the Title of the Civil Law de Fidejussoribus ff. lib. 46. Tit. 1. leg. 39. Et leg. 36. ibid. Et. Leg. 11. Cod. eod. Tit.
The Lords Decided, as said is, In respect of a Practique produced be∣twixt _____ _____ in anno _____ _____ relating to a former Practique in anno _____ _____