A clause of warrandice “against all deadly” contained in an assignation of a bond found not to extend to the solvency of the debtor.
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John Nicolson having an assignation in anno 1653, of a bond granted to him by James Crichtoun, Sheriff of Nithsdale, principal, and umquhile William Livingstoun cautioner, the name of the assignee was left blank till 1663, at which time William Hay's name was filled up, and which assignation contained a clause of warrandice against all deadly, as law will. William Hay having used execution on the assignation, against the principal and cautioner in the bond, returns upon the warrandice, and charges Nicolson; who suspends on this reason, that the clause of warrandice, as it is conceived in the assignation, could import no more, than that the debt assigned, was a real debt resting, and not to be evicted by any other right; especially seeing it did not bear expressly, to warrant it to be good, valid, and sufficient, which might infer to warrant, not only the assignation should clear the right of the debt, but that the debtor should be solvendo. And secondly, considering that there is no onerous equivalent cause for granting the assignation, Nicolson the creditor might have discharged Livingston the cautioner, and given him an assignation that he might thereupon charge the principal. The charger opponed the clause of absolute warrandice; which clauses have ever been esteemed to reach to the debtors' being solvendo.
The Lords found the clause thus conceived, could not extend to the sufficiency of the debtor.
