Relief among Co-debtors, and whether the Creditor, upon payment, is bound to assign in order to operate relief.
Magistrates of Dundee v. The Earl of Findlater
Date: 24 January 1668 Case No. No 5.
A Magistrate, upon his negligence in suffering a debtor to escape from prison, being condemned to pay the debt, has no recourse against the cautioners, whether he obtain from the creditor a discharge only, or be assigned to the debt; because he is liable ex delicto, and comes in place of the principal debtor.
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There was a bond granted by one Jackson principal, and a cautioner, which is also alleged to have been subscribed by umquhile Inchmartin as another cautioner; which bond being registrate at the creditor's instance, he did thereupon incarcerate the principal debtor, whom the Magistrates having suffered unwarrantably to escape, the creditor obtained decreet against the Magistrates for payment of the debt. The Magistrate pays the debt, but takes assignation from the creditor; and now, as assignee, pursues the Earl of Findlater, as representing Inchmartin, one of the cautioners, for payment, who alleged absolvitor, 1mo, Because the bond is null as to Inchmartin, wanting both date and witnesses; for it bears to have been subscribed by the principal, and the other cautioner, at such a place, such a day, before these witnesses, who are subjoined, and designed, and after the names of these witnesses says, ‘and subscribed by Inchmartin at———;’ after which there nothing follows in the bond but the subscription of parties, none of which subscribe as witness to Inchmartin, yet his subscription is amongst the subscriptions of the other parties, but as to him, it hath neither place, day, nor witnesses. The pursuer offered to condescend, that the day and place of the subscription of the witnesses were the same to Inchmartin as to the principal and other cautioner, which they alleged to be sufficient to make up this nullity, as is ordinary where the writer and witnesses are not designed, for thereupon the defender may improve the bond by the witnesses insert. The defender answered, That albeit the Lords supply the want of designation of writer or witnesses, by condescending on their designation, that means of improbation may be afforded, which is not the question here; yet the Lords did never suffer parties to fill up witnesses, where no witses were insert, nor no date, either as to year or month.
The Lords would not sustain the bond upon this condescendence, but ex officio ordained the witnesses (if they were alive) to be examined, whether they were witnesses to Inchmartin's subscription that same day and place with the rest, reserving to themselves what their testimonies should operate. See Witness.
The defender further alleged absolvitor, because he offers him to prove, that there was a decreet against the Magistrates now pursuing, at the instance of the creditor, for payment of the debt, because they suffered the principal creditor incarcerate to escape, so that the debt being paid by the Magistrates, coming in the place of the principal debtor ex delicto, it is in the same case as if the principal debtor himself had paid, which necessarily liberates his cautioners. It was answered, That the Magistrates are only liable to the user of the diligence pro damno et interesse, and to no other; for the creditor (user of the diligence) might have consented to the escape of the rebel, or might have discharged the subsidiary obligation, or action competent against the Magistrates for suffering him to escape, whether the cautioners would or not, and therefore the Magistrates might as well take an assignation from the creditor for payment of the debt, which implies the creditor's passing from them as bound ex delicto; in which case he would only have given them a discharge; but here the Magistrates contract with the creditor, and acquire the assignation, ut quilibet upon an equivalent cause. It was answered for the defender, That this assignation is evidently simulate in place of a discharge, there having preceded a decreet against the Magistrates, ita est, that assignations granted to persons obliged for a debt, do operate always as to the matter only as a discharge, though more summarily; as when cautioners pay, and are assigned, they must allow their own part; but much more these who are liable ex delicto, having paid upon a decreet, cannot seek relief, whether they have assignation or discharge, especially against cautioners; and if this were sustained, all rebels who had cautioners might be suffered to escape, where there are any cautioners, for messengers might be deforced, taking assignation to the debt, and proceeding against the cautioners, and albeit the user of the diligence might consent to the liberation, yet he could not pass from the obligation ex delicto, which accresceth to all parties having interest; and if the cautioners had been distrest by the creditor, they might pursue the Magistrates, suffering the principal to escape ex delicto et damno, for if he had not been suffered to escape, they would have been paid.
The Lords found this defence relevant, that the Magistrates pursuers, having suffered the rebel to escape, and decreet against them, and having satisfied the debt to the creditor, that they could not have recourse against the cautioners, either by virtue of a discharge or assignation. Here it was not debated, whether or not they might have recourse against the principal debtor escaping, who was principaliter in delicto, and the Magistrates but accessory.
Fol. Dic. v. 1. p. 222. Stair, v. 1. p. 513.*** Dirleton reports the same case:
A creditor having obtained a decreet in subsidium, for payment of his debts, against the Magistrates of Dundee; and having assigned the bond whereupon the debt was due, to the Magistrates, they pursued the cautioners in the bond; who alleged, that the debt and bond being satisfied by the principal or Town of Dundee, who was liable loco rei ex delicto, the cautioners were liberate.
The Lords did demur and delay to give answer.
1668. January 24.——The Town of Dundee being pursued in subsidium for payment of a debt due by a rebel, whom they suffered to escape out of prison; after decreet satisfied the creditor, and took assignation to the debt and bond, whereupon they pursued the Earl of Findlater one of the cautioners. It was alleged, That the town ex delicto had come in the place of the principal debtor, and payment made by them did liberate the cautioners, as if payment had been made by the principal. It was replied, That the Town was only liable to the creditor, who might pass from his decreet against the Town; and as he might have assigned the debt to any other person, the Town as quilibet might have a right from him.
The Lords found, that the Town is not in the case of cautioners, or expromisores ex pacto, but of correi, being liable in law ex delicto for, and in place of the principal.
