Two cautioners having paid a debt, and an assignation being taken in the name of one of them, who obliged himself to do diligence against the principal debtor for their common relief, it was found, that though, at the date of the obligation, the principal debtor was habite and repute insolvent, the one cautioner was liable for relief to the other, because he had neglected to do diligence.
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John Inglis, Commissary of Kirkcudbright, as principal, Roger Gordon of Troquhen, and Maghie of Balmaghie, as cautioners, become debtors to Mr John Birny for 1000 merks. The two cautioners being forced to pay the debt, they take the assignation in Balmaghie's name, and Troquhen gets a back-bond from him, acknowledging the trust, and obliging himself to do diligence against Inglis for recovery of the money. Troquhen pursues Balmaghie's heir on the passive titles, either to refund the half of the sum, or shew diligence against the common debtor. Alleged, Absolvitor from diligence, because it would have been wholly unprofitable; in so far as he offers to prove, that Inglis, at the time he gave the obligement, was altogether insolvent, and so holden and repute by the whole neighbourhood; there were so many diligences, both personal and real, by adjudications, infeftments, and other preferable burdens, that it would have been lost money to have done any diligence against him, where none was to be expected in return: And the half of the sum being his own, it is not to be presumed but he would have looked after it, if he had seen any rational prospect. And this defence has been sustained to tutors, who are more strictly bound than common trustees; for Durie observes, that tutors were not made answerable for diligence, where their pupil's debtors were not solvendo, and that they were not bound to throw away money in prosecuting broken debtors, Watson, No 37. p. 3501.; and Hamilton contra Hamilton, No 39. p. 3502. And Stair's Instit. Tit. Tutors. Answered, There is a plain disparity betwixt the two cases; for, in tutors, the obligation is not ex pacto, but arises ex quasi contractu, and is interpreted ex bono et æquo, what a prudent rational man would do in such circumstances; but the burden of diligence arises here from an express positive stipulation; where he precisely binds himself to diligence; and esto, his real estate had been carried away by adjudications, yet he ought to have used caption, and it has been frequently seen, that the squalor carceris has caused them or their friends discover secret funds towards their liberation; and, in this case, Inglis lived many years after Balmaghie's obligement to relieve Troquhen and do diligence, and likewise transacted and purchased in sundry others of his debts, but wholly neglected this, which was latissima culpa, and next to dole. Some thought, if he could prove Inglis was then so denuded that his creditors were infeft on their adjudications, or had charged the superiors, it should exoner him; but others said it was hard to leave this arbitrary to his choice, where his own writ dedit legem contractui; and therefore the plurality found he ought to have done diligence, at least by attempting incarceration, and having neglected it, they found him liable. There was a second point debated in this cause. Troquhen had paid Birny the annualrents from time to time, and craved repetition of the half from Balmaghie. Alleged, The discharges produced to instruct the payment, bear, ‘ received from Troquhen, for himself, and in name and behalf ‘of Balmaghie,’ which must be understood, that Balmaghie's money paid the half at least. Answered, The receipt of the money is acknowledged to be from Troquhen, and the addition of Balmaghie's name is only to shew the debt was pro tanto extinguished quoad Birny the creditor; but the discharges being in Troquhen's hand, presume the money was his, except Balmaghie prove he furnished the half of the money.—‘The Lords having read the discharges, found them of two different tenors. Some of them discharged singly Troquhen, when it came to the exonerating part. Others discharged both Troquhen and Balmaghie. In the first case, they found that the presumption lay, that the money was solely Troquhen's; but, in the last, that it was equally advanced by both. See Presumption.
Fol. Dic. v. 1. p. 243. Fountainhall, v. 2. p. 679.
