Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Aikman
v.
Hunter

Date: 26 February 1624

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In an action betwixt Aikman and Hunter,—the Lords found,—where a debtor is, by his bond, obliged to his creditor in a certain sum, and, after this bond, this same creditor, by another posterior obligation, granted him to be owing to his said debtor a certain sum,—that this posterior bond, granted to the former debtor, ought not to import liberation, to the debtor, of the preceding debt: as if, through the creditor's acknowledging him to be addebted, by virtue of the posterior bond, to him who was debtor by the prior obligation, the first debt should be presumed to become extinct and to cease, and that the creditor could not challenge any debt owing to him, seeing he was become himself debtor to him to whom he was creditor. Which prior debt, the Lords found, was not taken away by the foresaid posterior bond, upon any pretence that he, who was a prior creditor, needed never to have constituted himself debtor thereafter to him who was standing addebted unto him; seeing he might have allowed or defalked the preceding debt, which is probable, and presumed he did, before he gave a new bond to him who was standing his debtor before, as said is. Which presumption the Lords found not sufficent to extinguish or take away the first bond, but found that both the bonds might subsist, and that the last should only compense the first bond pro tanto.

Act. Lawtie. Alt. ——. Gibson, Clerk.

Page 114.