ADDITIONAL

SECURITY.

obligants, and he could not do suinmary diligence even against the principal debtor for the whole debt. He would be barred personali exceptione from doing diligence for the whole sum in the bond; he could do diligence for no more than the proportion falling on the principal debtor, ex facie of the bond. In the case supposed, the cautioner ought to get the bond assigned to a third party, ex facie absolutely, but truly in trust for him. That being done, the assignee can proceed with summary diligence for the whole debt against the principal debtor, who has no defence in law, and will in this way be excluded from any defence in form. The assignee can also proceed against the co-cautioners for recovery of their proportions.

The substantial rights of parties jointly and severally bound, however, cannot be affected by having the debt assigned to a third party, as here proposed; and, when each of the parties so bound has a rateable right of relief and recourse against the others, it is not competent for one of them who pays the debt, by getting the debt assigned to a third party, to impose on the others a different rule of settlement from that which would operate if he had himself been the assignee.1

Let us now consider the right of relief arising when additional security is obtained for payment of a debt already secured by a cautionary obligation.

A creditor sometimes obtains additional caution, by bond of corroboration or otherwise, saving to him all the effects of the caution originally given. This frequently happens when an original cautioner dies or becomes insolvent; or when a demand of payment is made which cannot be satisfied; or when the principal debtor is charged to pay, and suspends on caution, or in other circumstances.

The rules of relief in these cases are:-

1. That if the additional cautioner has become bound at the desire of the principal debtor, not of the original cautioners, nor to relieve them from an impending demand, then, in any question between the new and original. cautioners, the new cautioner has only a rateable relief, in the same way as if he had been one of the cautioners under the original bond.2

2. If the new cautioner has interposed on account or at the request of the original cautioners, or if he has become cautioner in a suspension at their instance, or even if they have been apprised of the application to the new cautioner, and have approved of it, as tending to relieve themselves from present demand, then the new cautioner is, as it were, cau

1 Gilmour's case, before referred to. In a previous stage of the same case (Gilmour, 8th July 1831, 9 Sh. 907), Lord Moncreiff exposed the practical futility of an attempt of the nature above indicated, by showing that if the one party got a friend to interpose, and pay on assignation, the other might equally obtain the aid of a friend, and require an assignation in his favour. 'The Lord Ordinary sees very well that

'the parties will never come to a fair set'tlement in this way of proceeding. They 'must meet in their proper persons, for 'this course of interposing a friend, as a 'third party, may be repeated ad infinitum.'

2 Bell's Comm. i. 351; Ker, Feb. 1865, M. 14,641; Smiton, 15th Nov. 1792, M. 2138.

tioner for the original cautioners; and on that footing is entitled, in any question among the cautioners, to total relief from the original cautioners.1 On this principle, the cautioner in a bond, against whom, along with the principal, decreet had been pronounced in a suspension, was found liable in total relief to the cautioner in the suspension who had paid the debt and obtained an assignation.2

Prior to the Mercantile Law Amendment Act, which altered the rule as to discussion in the case of cautioners, the legal presumption was that the new cautioner had interposed for the debtor alone, because the debtor was liable in the first instance, the original cautioners only after he was discussed; and particular indications were required to establish the right of the additional cautioner to total relief from the original cautioners.3 Among such indications, it seemed sufficient that a demand had actually been made against the original cautioners,* and that the creditor had forborne to urge payment on receiving new cautioners; or that, the debtor being abroad, and having no funds in this country, a state of circumstances which allowed the creditor to have immediate recourse upon the cautioners, the creditor had made his demand upon them; or that the original cautionary obligation was near expiry, and recorded for diligence. How far the Act will alter the legal presumption in cases where the benefit of discussion is not stipulated for by cautioners, is a point not yet settled. But, when additional cautionry is being granted, there can be no difficulty in ascertaining on whose account it is interposed; and, in order to exclude all risk of question on that point, it would be desirable that evidence should be preserved for instructing how the fact really stands. The evidence should of course be in probative writings.

3. Where a party has paid a debt for which he made himself liable, subsidiarie ex delicto vel quasi delicto, he is not entitled to any relief against the proper cautioners. Such is the case of the granter of a bond of presentation, who has failed to present the debtor in terms of his obligation. He is not entitled to relief from another against failure to fulfil his own obligation. And, generally, the principal debtor is not liable to relieve the cautioner of damages arising by the cautioner's own fault."

We now pass to the examination of ordinary Bonds of Corroboration. BONDS OF CORSuch bonds are in use to be granted under a variety of circumstances, ROBORATION. in particular:

1. By the original obligant, when any question has arisen between him and the creditor, involving the possible extinction of the original

bond, and when such question is compromised. The compromise ought to be followed by a bond of corroboration. When such question is settled by decree, there is no need of a corroborative bond; the decree of Court being equivalent to the bond, followed by registration.

2. By the original obligant, when it has been agreed to accumulate interest in arrear, with the original debt, into one principal sum, bearing interest. The arrears of interest would not carry interest ex lege; but it is lawful to constitute them a capital sum, bearing interest, by means of a bond of corroboration.

3. When a debt is constituted by account, or acknowledgment, or otherwise, without the privilege of summary diligence, or where the sum in a bill is likely to lie over for more than six years, whereby the bill may prescribe, a bond, or bond of corroboration, is frequently required, on condition of postponing the term of payment. This is important in cases where debts of the above description are likely to subsist for any long or indefinite period.

But, as to such cases, you will remember that, as the Act 1696, cap. 5, strikes against corroborative securities granted within sixty days of bankruptcy, care has to be taken not to give up existing vouchers, and, specially, not to part with direct or collateral securities, on the strength of the bond of corroboration, at least until the latter is unassailable; because, as before observed, it does not always follow that, on the bond of corroboration being set aside under the provisions of the Act, the old vouchers and securities will be restored, and there are securities, in various forms, which it may be impossible to recover,-for example, a bill or promissory-note by several parties. Such document, if delivered up, may have been cancelled.1

4. When a new obligant joins in the liability for a debt already due, a bond of corroboration is taken from the original and new obligants, binding them, jointly and severally, for payment to the creditor. And here it will be recollected that evidence should be preserved for instructing whether the new obligant has interposed his credit at the request of the whole of the original obligants, or only of the proper debtor. Care must also be taken in such a case to bind the new obligant by the use of the proper obligatory words. If the bond of corroboration omits the words necessary for that purpose, he will be free.2

5. A bond of corroboration is sometimes granted to the representative of the original creditor, with the object of saving him from the expense of completing a title to the debt by the process of confirmation. But that object is of questionable propriety; the probate and succession duties being debts due to Government, which it is not optional to pay or withhold.

6. When a debtor dies, his heir or representative, though liable to be sued for payment, cannot be charged summarily on the original bond, to 2 Coult, 12th July 1749, M. 17,040.

1 Bell's Comm. ii. 232.

which he was no party. The debt requires to be constituted against him in the first place, which can be done either by the decreet of a competent Court, or by his granting a bond of corroboration; and, when he is of full age, and subject to no legal incapacity, it is generally expedient to take such bond from him. But, even if the debt be due on bond and disposition in security, the bond of corroboration to be granted will be personal only, as a personal obligation is enough to obviate any objection or difficulty in reference to the creditor's remedies.

If the heir of the original debtor is liable as heir of entail only, it is specially important to obtain from him a bond of corroboration, in order to bind his heirs-general as well as his heirs of taillie for the whole debt. His heirs-general would not be made liable by his mere succession as heir of taillie, except for the interest falling due during his possession of the estate, and unpaid at the time of his death.

The general rules for framing such bonds are substantially the same in all these cases. The bond of corroboration ought to narrate the original bond, or other voucher of debt, the title of the assignee or executor, if the bond has formed the subject of assignation or succession; and then, the special reason for the new obligation, which in all cases will be granted without prejudice to the original bond' (or other voucher), ‘or to any diligence or execution thereon, but in corroboration thereof, et 'accumulando jura juribus.'

When the debt corroborated comprises any special security, the bond of corroboration ought to contain a declaration that, on payment, the granter shall be entitled to an assignation of that security. And when a representative, liable only as heir of entail, grants the bond, he ought to reserve to himself, and his heirs-general, their right of relief against the succeeding heirs of entail and the entailed estate, and to stipulate that on payment he shall be entitled to an assignation from the creditor.

Bonds of corroboration presuppose, and must necessarily refer to, some existing debt. But, though they are to that extent accessory, they subsist of themselves when granted, and are the proper foundations both of actions and diligence at the creditor's suit, independently of the original bonds, because the debtor's corroboration of the debt constitutes, of itself, a proper obligation against him. They are, however, struck at by the Acts 1696, cap. 5, and 1621, cap. 18, as we have already remarked;2 even when the effect is simply to enable a creditor to proceed with diligence, and obtain a pari passu preference, which he might have obtained without the corroborative bond.

1 Beg, July 1663, M. 16,091; Johnston, 24th Feb. 1676, M. 15,798.

2 Mackellar's Creditors, 1st March 1791, M. 1114; Dunbar's Creditors, 18th June 1793, M. 1027.

TITLE II.

ASSIGNATION OF PERSONAL OBLIGATIONS.

OLDER FORMS.

CHAPTER I.

HAVING now considered the more usual forms in which ordinary personal obligations (other than those by bills and promissory-notes) are constituted, I proceed to the consideration of the assignations and other writings by which bonds and debts, and other moveable property, are transferred.

Abbreviated forms for such assignations were authorized by the 'Transmission of Moveable Property (Scotland) Act 1862;' but, before considering these forms, it may be convenient to examine the forms in use before that Act came into operation, both because the Act does not abolish the older forms, and because the examination of the older will aid you in understanding the new forms.

Before the above Act was passed, the simplest form of the assignation of a personal bond, and a form which has been extensively in use, consisted of the following parts or clauses, viz. :-(1.) The narrative, which runs as follows:-'I, A., in consideration of the sum of £ 'instantly paid to me by B., whereof I hereby acknowledge the receipt, and discharge him;' (2.) the clause of assignation, which is in these terms, 'do hereby assign, convey, and make over to the said B., and his 'heirs, executors, or assignees, the sum of £ of principal, with a

'fifth part more of penalty in case of failure, and the interest of the said principal sum from and after the date hereof, during the not payment, all contained in and due by a bond dated granted by

C. in my favour.' Then follows the assignation of the bond itself, with 'the whole clauses and obligations therein contained, and all that has 'followed, or is competent to follow thereon.' To this is subjoined (3.) a clause surrogating and substituting the said B., and his foresaids, in 'my full right and place of the premises, with full power to uplift and receive, and to discharge or assign and convey, the said sums of money

1 25 & 26 Vict. c. 85.