[1600] Mor 9449
Subject_1 PACTUM DE NON PETENDO.
M'Math
v.
Monteith
Case No.No 2.
A creditor, in assigning a bond, granted by diverse correi, may provide that the assignee is not to use execution against some of them; but this hinders not the assignee to seek the full debt-from the rest, nor does it liberate the correi, in whose favour it was made, from a proportional relief.
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There being a bond granted by the deceased James Nisbet, William and James Arnots, all conjunct principals, to Gilbert Gourlay, for a sum of money, whereupon Gilbert comprises the said James Nisbet's lands; thereafter the said Gilbert assigns the debt and comprising to the deceased Sir William Nisbet, brother to James, with an express condition, That he should use no execution against the two Arnots; and Sir William transfers his right to William Monteith of Egilshaw, upon the same condition, who dispones the same to William Monteith, his son-in-law, who enjoys the land by virtue of the said comprising, being now long expired. Elizabeth M'Math being executrix to the deceased William M'Math, her father, and who gets a decreet cognitionis causa against the apparent heir of the said umquhile James Nisbet, and adjudges the said land; and upon the said adjudication, with concourse of her husband, Mr John Anderson, pursues a reduction of the said Monteith's right, upon diverse reasons, specially, That the assignation granted by Gourlay to Sir William Nisbet, and the translation granted by him to Monteith, both contain the said provision,
That they should not use execution against the said Arnots, who were correi debendi, which being pactum de non petendo, is equivalent to a discharge of their parts of the debt, and consequently makes the comprising null and extinct, at least as to the two parts: It was answered, That the reason of reduction is not relevant, because all three being bound conjunctly and severally, it was lawful for Gourlay to use execution against any one, or all, at his pleasure; and in the assignation, he might also provide, That the assignees should not use execution against two of them, but the third only, which noways did exoner the third Correus, unless the assignation had granted the receipt, of the other two, of their parts, and had discharged them thereof; and that provision of not using execution against the two, could not impede the third, who was distressed, to seek his relief against them, notwithstanding of the said provision, unless they had paid and been clearly discharged. The Lords found the answer relevant.
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