LAW AGENTS. TUTORS AND On the same principle as in the case of bankers, law-agents acting as factors are bound to bring their accounts to a balance, and accumulate the interest thereon annually.' In Graham's case, a factor was made liable to pay interest, at four per cent., on the accumulated balance of principal and interest, arising on his accounts with a deceased brother, although he was not allowed any factor fee. In the case of Wellwood's Trustees, the Court found that the factor for the trustees was liable to be charged with interest at the rate of four per cent. per annum, on all trust-moneys in his hands, from time to time; and that his accounts fell to be balanced annually, so that the yearly balance, on whichever side of the account it might be, might bear interest. Again, in the case of the Duke of Queensberry's Executors, the general rule, that factors' accounts should be brought to a balance, and the interest accumulated annually, was laid down. In that case, moreover, the factor was indebted to his constituent in a principal sum on heritable bond. He was entitled to retain such principal sum till he should be relieved of an obligation of warrandice undertaken for his constituent; but he was held bound to pay interest on the interest arising under the heritable bond, and to accumulate such interests annually. 3 8. Tutors and curators are bound to accumulate and pay interest on interest. The decisions heretofore pronounced vary as to the periods at which accumulation shall take place, and the rates of interest.* Factors loco tutoris, factors loco absentis, tutors-at-law, and tutorsdative are now subject to the provisions of the Pupils Protection Act,5 which, by sect. 4, appoints the annual rendering of accounts; by sect. 5, orders the money in hand to be lodged in bank; and imposes a penalty of twenty per cent. per annum on retaining more than £50 in hand for more than ten days; and, if not retained from innocent causes, appoints the factor, or tutor, or curator to be dismissed, and to have no claim for commission. The Court has no power to modify this penal interest. The Act does not reach testamentary tutors, or curators, or trustees, or their factors. But it can hardly be doubted that such parties would now be held bound to make up accounts annually; and, apart from any specialties, to pay interest on the accumulated balances at five per cent. The Lord President M'Neill, in delivering his opinion in the case of Wellwood's Trustees, before referred to, expressly said,-that the factor (who was one of the trustees) ought to be charged at the highest legal rate' of interest. The other Judges are stated to have concurred; and unless Graham's case, before cited, was held as forming a precedent which ought to be followed, it does not appear on what ground the interlocutor of the Court, in Wellwood's case, decerned for four per cent. only. 1 Graham, 14th Jan. 1824, 2 Sh. 606. 2 Wellwood's Trustees, 17th Dec. 1856, 19 D. 187. 3 Duke of Queensberry's Executors, 21st Dec. 1826, 5 Sh. 180. The interest on money, lent on personal bond, runs de die in diem; and the form of bond above proposed is expressed accordingly, saying, 'daily, monthly, yearly, and continually,' till payment; but, though it is right to use these or similar words, the law would give interest down to the day of payment of the principal, unless there was something in the bond, or other document of debt, to show that the parties did not intend interest to be payable.1 The consent to registration for preservation, and if necessary for exe- REGISTRATION. cution, follows the obligation for payment, and ought to be in the short form authorized by the Titles to Land Act of 1860.2 This authorizes summary and all other necessary execution upon six days' charge. If the short form is not employed, it will be recollected that the days of charge, under a personal bond, ought to be six. This number ought in such cases to be specified, otherwise the execution, in virtue of the registered bond and warrant thereon, will be on fifteen days, if the debtor is in Scotland, and not in Orkney or Shetland, and forty days if in Orkney or Shetland. If, however, letters of horning in the old form are resorted to (as is still competent), the execution, in the above cases, will be (where six days are not specified) fourteen and twenty-one days respectively. If the debtor is furth of Scotland, the execution, whether on the warrant annexed to the extract bond, or on separate letters of horning, will be on twenty-one days' charge.3 The bond concludes with a testing-clause in usual form. CHAPTER II. WE shall now consider some varieties in the form of personal bonds, taking (1.) the case of such bonds by two or more obligants. GANTS. Where two or more parties undertake an obligation as principals BONDS BY TWO (otherwise than by bill or note) for payment of a sum of money, or for OR MORE OBLI anything else which is divisible in its nature, and, even when the principal subject of the obligation is indivisible in its nature, if there be an alternative obligation, to take effect in case the principal obligation be not fulfilled, and if such alternative obligation be divisible,—in all these cases the general rule of law is, that the parties are liable respectively pro ratâ parte only, according to their number, and not each in solidum; and bonds for money lent, granted by two or more principal obligants, simply binding themselves and their heirs, etc., would impose liability on each only for his rateable proportion. 11 Bell's Comm. 558; Cunninghame, 13th Dec. 1821, 1 Sh. 212. 2 23 & 24 Vict. c. 143, s. 30. 3 See the Court of Session Act, 13 & 14 Vict. c. 36, s. 21. JOINT AND SEVERAL SUBJECT- The rule of construction is the same, although the parties shall bind themselves 'jointly' or 'conjunctly.' In such case, each is liable only pro rata. Professor Bell1 has indeed affirmed that the word 'conjointly' imports an obligation in solidum, and not pro ratâ only; but the authorities he quotes do not appear sufficient to bear out that view; and Mr. Duff's opinion, that the word 'conjointly' imports only an obligation pro rata, appears more correct. In general, however, when bonds are granted by two or more parties, it is intended that each co-obligant shall be liable to the creditor for payment of the whole debt. It is usual, for that purpose, to make the parties bind themselves 'jointly and severally;' and whatever may be the legal import of the word 'conjointly' by itself, it would be a grave error in a conveyancer were he, in framing an obligation intended to bind each of two or more persons in solidum, to omit to take them bound conjointly and severally.' This last word, 'severally,' clearly and beyond all doubt subjects each in liability, in solidum, or for the whole debt. The introduction of the word 'severally' has the same effect as if each obligant had granted a several or separate bond to the creditor for the whole debt. And each of several obligants so bound can be sued for payment or fulfilment of the whole, without calling the others. The result is the same if the parties are all bound as full debtors,' or as 'co-principals and full debtors; also, if the terms of the obligation are such as to import a copartnery between the co-obligants,-as copartnership of itself implies joint and several liability. Even a joint purchase for common behoof renders the purchasers severally liable for the price, and the joint obligation to grant bills as guarantees for purchases to be made. Also, decreet for expenses against the joint pursuers of a process, proceeding on the same ground of action, and with the same conclusion, infers several liability for the whole expenses." 3 The liability is necessarily the same, if the subject-matter of the obligation be indivisible. But if the subject be divisible,-for example, an obligation for the delivery of wines or other fungibles,--the obligation is on the same footing as one for payment of a sum of money. Joint and several liability, however, will be involved, even where the non-performance of a fact results in a claim of pecuniary damages, if such result is brought about by the mere operation of law. The mere resolving into a claim of damages does not convert the obligation in solidum into an obligation pro ratá. On the other hand, if the money claim arises under the bond, and as the stipulated alternative to the obligation to perform the fact, the liability for the money will be divisible among the parties pro ratâ.10 The intention of the parties, however, as to their re7 Sutherland, 24th Feb. 1776, 5 Br. Sup. 439. 11 Bell's Comm. 345. 2 Duff's Treatise on Deeds chiefly affec- 3 Richmond, 8th Feb. 1847, 9 D. 633. 5 Mushet, 16th Dec. 1710, M. 14,636. 8 Grott, 14th June 1672, M. 14,631; and Dickson, 24th Nov. 1697, M. 14,632. Darlington, 6th Dec. 1836, 15 Sh. 197, Lord Moncreiff's Note. 10 Erskine, iii. 3. 74; Denniston, 16th July 1669, M. 14,630. spective liabilities, may, if proved by their oath, authorize a claim for more than the words of the obligation would ordinarily impose.1 A letter, engaging to bind 'conjunctly' with another for the price of sheep to be purchased, was held to mean that the party would engage for the whole debt.2 Lord Elchies says,3 Unanimously we held him liable in solidum, which is the common acceptation among the commons of the word con'junctly. There is, on the other hand, the instance of an obligation by two parties conjunctly and severally, with this addition, ilk one for his own part,' which last words were held to qualify the preceding words, and make each liable pro ratâ only ;* and in a case not altogether free of specialties, where each of two parties separately gave a letter, saying, 'I 'hereby become bound to you, along with A. B., to guarantee to you to the ' extent of £800,'-the obligation was held joint, and not several, and to bind each only for the half, in like manner as if the two had in one letter bound themselves jointly for the sum in question.5 CAUTIONER. An obligation by two parties, which in its terms imports, though it PRINCIPAL AND does not express, that one is the principal, and the other cautioner, renders the one as principal, and the other as cautioner, liable for the whole debt, without the quality of 'conjointly and severally' in the bond. And two or more principal debtors who are bound conjointly and severally to the creditors, are bound in like manner, in relief of one who has bound himself as their cautioner, although the co-principals were not expressly obliged in the bond to relieve him conjunctly and severally, but only to relieve him in general;' because 'the co-principals being 'bound to the original creditor, conjunctly and severally, were also bound 'so to the cautioner, who interposed conjunctly and severally for them; and who, by payment, taking an assignation from the creditor for his ' own relief, came in place of the creditor." 6 Tutors and curators also are jointly and severally liable to the pupil or minor (unless their liability is limited by the deed of their appointment). The joint and several liability, however, when undertaken, is in- RELIEF. tended for the benefit of the creditor, and not with the view of altering or affecting the rights and liabilities of the obligants respectively, inter se ; and accordingly, if any one of them is required to pay more than his rateable proportion of the debt, he has right of relief, or recourse by law, against his co-obligants for the excess of his payment beyond his proper share. The joint and several liability of the obligants, however, operates in questions inter se to this effect, that, if one or more of them shall become insolvent, the deficiency arising through his or their insolvency falls upon the others, increasing their rateable proportions 1 See Campbell, 25th Nov. 1724, M. 14,626. 2 Sloan, 5th Feb. 1751, M. 14,630. 3 Elchies, voce Solidum et pro ratâ, No. 1, Notes, 431. 4 Farquhar, 28th July 1638, M. 2282. 5 Alexander, 28th Nov. 1827, 6 Sh. 150. 6 Grant, 6th July 1721, M. 14,633, 14,637. 7 Buchanan, June 1713, M. 14,661. 8 Carswell, 15th Jan. 1850, 12 D. 462. FOR PAYMENT respectively of the debt. And the right of relief or recourse, on the part of the solvent obligants, inter se, becomes operative as above with reference to the increased proportions. This right of relief or recourse arises by law on payment of the debt; and it is not necessary, in order to operate recourse, that the obligant paying shall obtain an assignation of the debt from the creditor.2 In general, when two or more individuals join in a personal bond, one is proper debtor, and the others only his cautioners; but it is usual, notwithstanding, to frame the bond just as if all were proper debtors, and in the same situation as regards the loan. It is sometimes objected to that form, that it states what is contrary to the fact,-in making the whole parties acknowledge that they had borrowed and received the amount of the loan; whereas, in truth, only one of them was so to borrow and receive, though all were to undertake for repayment. In order to meet that objection, the bond can make the actual borrower only grant the acknowledgment of the receipt of the loan, though all the parties will bind themselves jointly and severally for repayment. This will constitute a good obligation on each and all of the parties, care being of course taken to get all of the parties to subscribe. The fatal effect of omitting to obtain the subscription of any one or more of the obligants named, in a bond so framed, is shown in the case of Paterson,3 to be afterwards referred to more particularly. When two or more obligants grant a bond, one being proper debtor, and the others cautioners only, it is proper for the cautioners to obtain from the principal debtor either a formal bond of relief, or a probative acknowledgment that the debt, though ex facie due by both or all the parties, is truly due by the granter of the acknowledgment only, and an obligation by him to relieve the other or others as accords. CoCO-OBLIGANTS obligants sometimes engage for payment of interest only; in which case, the bond, after an introductory or narrative clause and obligation on the part of the proper debtor to pay the principal sum, and corresponding penalty in case of failure, will proceed thus: 'And I, the said A.,' (that is the proper debtor), and 'I, C.,' (that is the co-obligant for the interest), hereby bind ourselves, jointly and severally, and our heirs, executors, and representatives whomsoever, without the necessity of 'discussing them in their order, to pay to the said B. or his foresaids the interest,' etc., as in the form applicable to bonds by two parties. When the obligation for interest is not incorporated in the bond, it will narrate the bond, and that, in the treaty for the loan, it was stipulated and agreed that the co-obligant should become bound for payment of the interest. The obligation will then, without prejudice to the bond for the principal and interest, but in corroboration thereof, bind the co-obligant, his heirs, etc., without the necessity of discussion, to pay the interest, in terms corresponding to those of the obligation for 6 1 Finlayson, 20th Dec. 1827, 6 Sh. 264. 2 Craigie, 21st Dec. 1710, M. 14,649. 3 Paterson, 9th March 1844, 6 D. 987. |