A co-debtor found entitled to receive assignation of diligence from the creditor, that he might the more speedily operate his relief.
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Manderson and Hay were joint acceptors of a bill payable to Erskine, who sued both of them for payment; and, as Hay pleaded no defence, immediately obtained decreet against him.
Manderson, however, being still sued for the whole debt, made offer of payment, on condition of receiving an assignation to the decreet against Hay, the correus debendi; which being refused, he, in a process of suspension, brought on that ground,
Pleaded: ‘A creditor cannot arbitrarily discharge his diligence done against one correus debendi to the hurt of the rest, who have a right to claim assignation;’ Dalrymple's Decisions, No 167.* When a debt is discharged by a correus, it is
Page 231. Wallace against Elibank, 25th January 1717, voce Debtor and Creditor.
certainly just that the creditor thus satisfied, should communicate to him a right, which he himself can no longer exercise.
In the present case, the assignation may be of important use; as without the circuit of a process of constitution, it will entitle to immediate execution against Hay; by which means alone, perhaps, such danger as that arising from his suddenly converting his effects into cash, and leaving the kingdom, could be prevented. The creditor, therefore, should not be permitted to withhold that conveyance, notwithstanding the opposite tendency of a decision reported by Lord Stair in 1666,* and of a later one by Lord Fountainhall,* which indeed is less connected with the present question, or of the opinion of Mr Erskine,* founded on the authority of those judgments. It is, however, to be remarked, that Lord Fountainhall has subjoined to the last-mentioned decision, this acknowledgement, “that with respect to the beneficium cedendarum actionum, our practice is not yet arrived at a full consistency.”
Answered for the creditor:—By the Roman law, the beneficium cedendarum actionum was indeed allowed to cautioners; but the reason of it was, that there were no other means by which they could operate their relief. In ours, such a claim is rejected, because they may obtain relief without that extraordinary remedy; though perhaps it might enable them to execute diligence more speedily. Nor is it necessary to add, that the case of no co-obligant is so favourable as that of a cautioner, which the suspender is, being joint acceptor of a bill for behoof of another. That the above is the doctrine of our law, is evident from Erskine, p. 474.;* Stair, July 10. 1666, Hume contra Crawford;* and from Fountainhall, V. 1. p. 687. Dec. 12. 1695, Wood contra Gordon, voce Debtor and Creditor.
The Lords found, ‘That the creditor was bound to grant the assignation demanded by the suspender.’
Lord Ordinary, Alva.Act. R. Sinclair.Alt. Buchan-Hepburn.Clerk, Campbell.
Fol. Dic. v. 3. p. 72. Fac. Col. No 98. p. 189.
* The case reported by Lord Stair, above alluded to, is Hume against Crawford, v. 1. p. 393. 10th July 1666. voce Debtor and Creditor: That by Lord Fountainhall, is Wood against Gordon, v. 1. p. 687. 12th December 1695, voce Debtor and Creditor: The opinion of Mr Erskine mentioned, is in b. 3. tit. 3.§ 68.
