Relief among Co-debtors, and whether the Creditor, upon payment, is bound to assign in order to operate relief.
Wait and Rae v. Panton
Date: 31 December 1697 Case No. No 12.
Found in conformity with No 4. p. 3347.
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Wait's children, and Bailie Rae in the Canongate, who was lately their tutor, charge William Panton writer, for 1000 merks contained in his bond. He suspends, that the bairns not having chosen their curators, there was none authorised to give him a valid disharge.—Answered, 1mo, The money is payable to me for their behoof, and though my office of tutory be expired, yet I will give you sufficient warrandice; likeas, the Lords may name their advocate to be curator ad hanc litem; 2do, A minor wanting curators may do all that a minor having curators can do.—Replied, Plenissima securitas to the debtors of minors is, either where they pay to curators, or on the sentence of a judge; and here a curator ad lites will not serve to concur with the minors in a discharge, but it must be a curator ad negotia, who cannot be chosen by the Lords, but only by the minor himself; and this is clear per l. 7. § 2. D. de minor, si minor conveniat debitorem, adhibere debet curatores ut iis solvatur pecunia, alias non compellitur solvere.——The Lords found the money being payable to Bailie Rae, the interposition of their authority was sufficient warrant to William Panton, the debtor, to pay. And he craving an assignation against William Gordon of Pencaitland, the principal debtor, the Lords found, though the creditor was rigid in refusing an assignation, yet that they could not compel him; but the cautioner behoved to pursue, as accords, on his clause of relief. The 2d § Institut Tit. Quib. licet alienare vel non, is in the case of pupils and tutors, but not of minors and their curators paying their creditors, or receiving sums due to them by their debtors, where the minor consumes or dilapidates the same; for minori habenti curatorem solutio sine illius auctoritate facta non exonerat debitorem, and the minor is restored contra istam solutionem, nisi pecunia extet, vel in rem minoris versa sit.
Fol. Dic. v. 1. p. 221. Fountainhall. v. 1. p. 808.
