Scottish Court of Session Decisions

Subject_1 DEBTOR AND CREDITOR.
Subject_2 SECT. I.

Relief among Co-debtors, and whether the Creditor, upon payment, is bound to assign in order to operate relief.

Hay
v.
Tweedie

Date: 14 February 1702
Case No. No 13.

A personal creditor adjudging, tho' he is bound to accept of payment from another personal creditor, cannot be forced to grant an assignation, but a discharge only.

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William Hay of Drummelzier being a creditor to French of Kingledores, and adjudging his lands, compearance is made for Robert Tweedie, another creditor, who contends, You cannot adjudge, because I am willing immediately to pay your principal and annualrent, and true disbursed expences, et nihil tibi deest, you giving me an assignation to your right.—Answered, I am content, but I will give you nothing but a discharge, no law obliging me to assign; and you can be in no better case than the debtor who may redeem and pay, but can crave no more but a discharge and extinction of the debt; and at this rate there might be a circle, for another personal creditor may redeem from you, as you offer to do from me; and so you have no interest, unless you had affected the lands by adjudication, or some other legal right.—Replied, It seems too grasping and malicious to refuse payment; and has our law no remedy to compel in such cases? For why should you accumulate unnecessary expenses on the debtor, or co-creditors, by adjudging, and then claim your penalties and accumulations?——The Lords found a personal creditor, offering to pay, could not force him to give him an assignation; but declared, in the competition of the creditors, they would take this offer to consideration, how far it may then cut off accumulations now heaped on the debtor and co-creditors, and would count them as strictly as law would permit. It seems each of these parties had a design to purchase the lands.

Fol. Dic. v. 1. p. 221. Fountainhall, v. 2. p. 146.