If the Subscription of one of the Obligants be null, or not adhibited.
Sinclair of Airth v. Laurence Sinclair of Burgh
Date: 13 February 1624 Case No. No. 16.
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Sinclair of Airth pursued Laurence Sinclair of Burgh for payment to him of 20 angel nobles, as heir to his father, who was bound by his obligation for the same. The defender alleged, That he should be assoilzied from the one half, because his father was bound conjunctly with Jean Bruce, and she had not subscribed the bond. The Lords decerned the defender in the whole, because he ought to have provided for his own relief.
Fol. Dic. v. 2. p. 378. Spottiswood, (Contracts) p. 62.*** Durie reports this case:
One Sinclair, in Orkney, pursues another Sinclair for payment of a sum contained in a bond; against which the defender alleged, That he could not be subject, but in the equal half of the sum contained in the bond, in respect that, by the express tenor thereof, the defender, and another person therein named, are obliged conjunctly to pay the sum, which imports, that every one of the two are allenarly subject to pay the equal half; and albeit that the other person named in the bond with the defender hath not subscribed the bond, yet, seeing the bond is drawn up and conceived of that tenor, that they are bound therein conjunctly, the defender's subscription cannot bind him to any greater quantity than is expressed and set down in the tenor and body of the bond. This allegeance was repelled, and the action sustained for the whole sum against the defender, who only subscribed the bond, albeit the tenor bore two to be bound; which, if it had been subscribed by both, the sum would have divided equally; but being subscribed by one only, the subscriber was bound for all, and who should have sought and provided for his relief of the other half when he subscribed the bond.
Act. Baird.Clerk, Gibson.
Durie, p. 109.*** Haddington also reports this case:
A bond, bearing Janet Burne, and Sinclair, her son, to be obliged to pay to Sinclair 28 merks, neitheir binding them conjunctly nor conjunctly and severally, but only these words, “We bind us, our heirs,” &c. and the bond not being subscribed by Janet Burne, nor any notary for her, it was sustained against Sinclair, her son, for the whole.
