Relief among Co-debtors, and whether the Creditor, upon payment, is bound to assign in order to operate relief.
Wood v. Gordon
Date: 12 December 1695 Case No. No 11.
A discharge to a cautioner operates the same effect, quoad his relief, that an assignation would do, except as to a summary charge and present execution.
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Mersington reported Major Wood and the Laird of Spot against Mr William Gordon, advocate; who being pursued for 1000 merks, propones compensation, that you Major Wood, by your bond of relief, was bound to free Mungo Wood, your uncle, and my father-in-law of an equivalent debt, and which Mungo being forced to pay, assigned to the said Mr William. Objected, 1mo, That he produced no assignation to the debt, but only a simple discharge, which could only extinguish the debt, but never produce an action or ground of compensation. Answered, Some creditors are so scrupulous, they will not grant an assignation, and to which they cannot be forced by law; but a discharge to a cautioner operates the same effect quoad his relief, that an assignation would do, except as to a summary charge and present execution. The Lords repelled the objection in respect of the answer. The 2d defence was, that posterior to the bond of relief, he had obtained a general discharge from Mungo Wood, on the back of a bond for L. 340 Scots, not only discharging that particular sum, but also all preceding demands, which must necessarily comprehend this debt; and that the Lords, in the case of Forbes against Gordon, voce General Discharge, &c. had sustained such a general discharge to cut off all proceedings. Answered, That these words, ‘of all preceding demands,’ could never extend to comprehend a bond of relief for a sum much greater than the particular sum discharged, especially seeing it was not after a stated count and reckoning (as that of Gordon's was,) and that it appeared there was a current trade and correspondence between the Major and his uncle, which might be the meaning why these words ‘of prior demands,’ were insert; and in the case of Law and Baird, 16th and 22d November 1695, voce Possessory Judgment, the Lords would not allow a renunciation, though in most comprehensive terms, to go beyond the comprising therein narrated; 14th February 1633, Haliburton against Hunter, voce General Discharge and Renunciation; and 24th February 1636, Lawson against Ardkinlass, Ibidem. The Lords repelled also the second defence, and found this general clause could not extend to a bond of relief, unless he could prove it was deductum in computo, and expressly treated and communed on at the time. As to the first point, the Romans allowed their cautioners, besides the exceptio ordinis et discussionis, likewise beneficium actionum cedendarum; as to which our practice is not yet arrived at a full consistency.
Fol. Dic. v. 1. p. 221. Fountainhall, v. 1. p. 687.
