Scottish Court of Session Decisions

Subject_1 PRESUMPTION.

DIVISION XV.

Levior Obligatio præsumitur.

Alexander Waddel of Holhousburn
v.
William Douglas

Date: 10 December 1709
Case No. No 321.

One of three co-principal debtors in a bond having paid the debt, and got a discharge, to himself and all concerned, and having taken away from the bond his own name and that of another of the co-principals, the bond was not sustained to operate relief to the payer against the third co-principal whose name was uncancelled.

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In the pursuit at the instance of Alexander Waddel, as assignee by John Stevenson of Herdmonshiels, against William Douglas of Bads, as representing the deceast William Douglas, his father, for payment of a third of the sum of L. 2565 principal, annualrents, and penalty, contained in a bond, wherein the cedent, the deceased William Douglas, and the deceased Mr. William Archibald, writer in Edinburgh, were co-principal debtors; which bond was paid by Mr David Mitchel, doctor of medicine, to Alexander Veach, the creditor, in name of Herdmonshiels; whose name, and Mr William Archibald's, was thereafter torn from it, upon a discharge to Herdmonshiels and all concerned in the bond.

Answered for the defender; His father and Mr Archibald, though bound as co-principals with Herdmonshiels, were in effect but cautioners, as is sufficiently clear from the following circumstances: ‘1mo, Had not Herdmonshiels considered himself as the only debtor, he would not have torn his name from the bond being sufficiently secured by the indorsed discharge; far less would he have taken Mr Archibald's name from it, the doing whereof doth plainly argue that he had no pretence to relief; 2do, Had any relief been competent to him, he would have taken a disharge to himself, and an assignation against the other two carrei debendi.

Replied for the pursuer; 1mo, The bond having been a completed right, any supervening cancellation of the debtors names can only be extended in favour of those whose names are taken away; for had it been designed to annul the bond in toto, Bad's name would have been also cancelled. Whatever might have been said from the identity of the obligation against the common creditor, had the cancelling happened before he got payment, yet, after it was paid, two distinct obligations of relief against the co-principals arose to the payer, who might safely cancel the name of him that satisfied for his part, without vitiating the whole; as, had the obligation been in different papers, each might, upon payment, have retired his own bond. Besides, as a bond granted by different persons, conjunctly and severally, is not null for being subscribed by one only, so a formal bond subscribed by severals, remains valid so long as the subscription of any one of the co-principals is entire. Cancellation cannot vitiate more than falsehood. Now, a writ consisting ex diversis capitulis vel causis, improved as false in one, may stand as to the rest; L. 42. C. De Transact. Yea, lawyers expressly teach, That a partial cancelling of a writ doth not vitiate the whole; Everard de Fide Instrumentorum, p. 48. No 46.; Alexander. Consil. 14. No 10.; Voet et Bruneman ad Tit. De His quæ in Testamento delentur. And in the late case of Mrs Margaret Menzies contra Livingston, a writ was not found annulled by tearing from it the side-subscription. 2do, Albeit the discharge did wholly exclude the creditor's interest, so as he could not crave payment from, or use diligence against Bads; yet the obligation of relief among the debtors themselves could not be taken away by the creditor's deed, but remained entire notwithstanding his discharge, which only extinguished the common debt, in so far as the granter had interest. Yea, the discharging the co-principals was so far from cutting off the payer's relief, that it was de facto necessary to found it. And an assignation from the common creditor was not necessary to entitle Herdmonshiels to a proportionable relief off the correi, that being competent to him ex negotio gesto, but only to furnish him a more direct ground of summary charge.

Duplied for the defender, There is a great disparity betwixt a bond subscribed originally by one of more correi therein mentioned, and a bond from which two of three subscribing debtors' names are taken away. And the authorities out of the civil law are wide from the purpose. For one of the articles transacted ex falso instrumento doth not annul the transaction as to the rest; because these are diversa negotia, subsisting separately upon their own foot; whereas, the bond in question is an individual obligation entered into by three. Again, the testator's scoring the name of one of the persons instituted heirs by him, doth not hinder the institution to stand good as to the rest; in respect the testament having its force from the testator's subscription, remains entire; whereas here, the subscriptions, which give life to the obligation, are cancelled.

The Lords sustained the defence founded on the retired bond, and discharge upon the back thereof; albeit one of the Lords said, It was an ordinary custom to delete persons names in a decreet against debtors, and thereupon to raise diligence against the rest; for the Lords thought such a practice unwarrantable; and it is commonly said by my Lord President, That he who tampers with a writ, should lose either the hand or the writ.

Fol. Dic. v. 2. p. 164. Forbes, p. 364.