It is competent to prove by facts and circumstances, that one of two joint obligants in a bond is only cautioner for the other, so as to entitle him to a total relief out of the bankrupt estate of the co-obligant.
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Alexander Smollet and the late Alexander Pentland were joint obligants in a bond for L. 300. The whole sum was paid by Smollet, who, in the ranking of Pentland's creditors, stated a variety of circumstances in order to establish that the bond was granted solely for behoof of the latter, and craved a total relief.
The Creditors, on the other hand, contended, That Mr Smollet being ex facie of the bond a joint obligant, the presumption thence arising against him could only be removed by a writing equally formal with the bond itself; Erskine, B. 4. Tit. 2. & 21.
The Court had no doubt of the competency of a proof by facts and circumstances; and found “it sufficiently instructed, that the joint bond, granted by the pursuer and Alexander Pentland, was a cautionry obligation, undertaken by the pursuer for Mr Pentland; and remitted to the Lord Ordinary to proceed accordingly.”
Lord Ordinary, Ankervile.Act. Honyman.Alt. Wight.Clerk, Menzles.
Fol. Dic. v. 4. p. 157. Fac. Col. No 32. p. 65.
