Consent not presumed, when the Deed can be ascribed to another Cause.
Farquhar of Tonley v. Gordon
Date: 20 February 1668 Case No. No 65.
Against a reduction of a bond, at the instance of a cautioner, homologation was pleaded, in so far as the reducer had obtained decree against the principal to relieve him, which implied that the acknowledged himself bound. The Lords found the decree of relief did not homologate the bond.
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Farquhar of Tonley pursues reduction of a bond granted by him upon minority and lesion.—It was alleged absolvitor, because he had homologated the bond, in so far as he being cautioner in the bond, he had pursued relief, and obtained decreet for relief, which did necessarily import that he acknowledged himself bound, else he could not have craved relief.—The pursuer answered, That seeing the bond stood unreduced at that time he might lawfully pursue the principal debtor to relieve him, against which he could have no objection; for the benefit of reduction upon minority is peculiar to the minor himself, and no other can make use of it; and in his pursuit of relief he might very well have declared, that in case he obtained not relief against the principal debtor, he might free himself by reduction against the creditor; so that homologation being a tacit consent, can never be presumed where the deed done might have another intent; and his pursuit for relief was not to bind himself, but to loose himself. He did also allege, That the pursuit of relief was at his father's instance, and his own promiscuously; and after the decreet was thereupon extracted, he gave it in again, and took a new extract, which bears not a relief for him of his debt.
The Lords found the pursuit and decreet of relief to be no homologation to exclude this reduction.
The defender then offered him to prove that the pursuer was major when he subscribed; so that the libel and defence being contrary, and great advantage arising to him who had the benefit of probation by highland witnesses,
The Lords resolved to prefer neither to probation; but before answer, ordained them to adduce such evidents and adminicles as they would use to prove the pursuer's age, that they might prefer the strongest and clearest probation.
