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In a process against a cautioner, he was assoilzied, because the principal had given to the creditor infeftment, “in full satisfaction” of that sum.
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The deceased Scot of Whiteslead, being cautioner for Scot of Thirlstane, for the sum of to his creditor, the rights whereof being come in the person of Mr John Lawson, who seeking transferring of the bond against Whiteslead, as heir to his father, he alleged, That the principal had given to the creditor infeftment of his land, in full satisfaction of that sum, whereby, in effect, that bond was satisfied, and the creditor could never have recourse to the prior bond, neither against the principal, nor any of his cautioners, but ought to be content with that infeftment, given in full satisfaction, as said is. 2do, He alleged, That the creditor had comprised the debtor's other lands and teinds, and, by virtue thereof, acquired possession of a part of the same, which possession, conform to the said comprising, ought to be found as payment, so that he could never return, neither personally against the debtor, nor his cautioner, nor no other ways, seeing the debt behoved to be counted as paid.— The Lords found the first allegeance relevant, notwithstanding that the pursuer answered, That that infeftment bearing, to be given in full satisfaction of the debt, could not be reputed as payment, but behoved to be reputed as a further security for payment, as it was indeed; and that adjection of the clause which bore, in full satisfaction, could mean nor import no more, but that when he might be paid by the infeftment, it should fully satisfy; but the making it of that tenor could not take away this prior security, except that prior right had been specifice discharged; for, novatio non fit nisi expresse, where the prior security was expressly discharged, which was never done by the pursuer, who, without he had so done, could never be prejudged of his debt, albeit he had received twenty securities for his sum; likeas, he renounced omni habili modo that infeftment; notwithstanding whereof, the allegeance was sustained; and by the receiving of the infeftment of the tenor foresaid, it was found, that the prior security was extinct; and, as to the second allegeance, the same was repelled; for the Lords found, that a comprising, albeit the compriser was in possession ex parte, if he were not totally paid thereby, seeing the pursuer renounced the same, could not prejudge the compriser, to have recourse to his prior security; but whatsoever he had recovered by the comprising, it might be admitted as partial payment pro tanto; but he might, nevertheless, seek the rest otherways, not being paid totally.
Act. Stuart.Alt. Cunningham.Clerk, Gibson.
Fol. Dic. v. 2. p. 151. Durie, p. 689.
