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Scottish Court of Session Decisions >>
Seaton v Seaton. [1668] Mor 3547 (19 December 1668)
URL: http://www.bailii.org/scot/cases/ScotCS/1668/Mor0903547-006.html Cite as:
[1668] Mor 3547
Discharge of one Correus how far it operates in favour of others.
Seaton v. Seaton
Date: 19 December 1668 Case No. No 6.
A discharge to one of more co-tutors was found not to liberate the rest, except in so far as satisfaction was given by the party discharged, or in so far as the other co-tutors would be excluded from recourse against the party discharged.
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Mr Alexander Seaton, as executor to his brother, Pitmedden, pursues Seaton of Menzies, as representing his father, who was one of the pursuer's brother's tutors, for his father's intromission with the pupil's means; who alleged absolvitor, because the pupil, after his pupilarity, had granted a discharge to one of the co-tutors, which did extinguish the whole debt of that co-tutor, and consequently of all the rest, they being all correi debendi, liable by one individual obligation, which cannot be discharged as to one, and stand as to all the rest; for albeit pactum de non petendo, may be granted to one, and not be profitable to the rest, a simple discharge, which dissolveth the obligation of the bond, must be profitable to all.
The Lords repelled this defence, unless the discharge had borne payment, or satisfaction given, and in tantum, they found it would be relevant, but not a simple discharge, which could only be relevant in so far as they by this tutor would be excluded from the co-tutors' bearing a share with this-tutor, in omissis et male administratis; there being nothing here but this tutor's own proper intromission, now insisted for.
The Lords repelled the defence simply.
Fol. Dic. v. 1. p. 244. Stair, v. 1. p. 575.*** Gosford reports the same case:
In the action at Alexander Seaton of Pitmedden's instance, against George Seaton of Menzies, there being a new allegeance proponed, viz. that they offered them to prove, that the pursuer's brother had given a full discharge to one of the creditors, which in law must discharge them all, they being correi debendi,—The Lords repelled the allegeance, unless the discharge did bear, upon payment and satisfaction of the whole goods intromitted with by the whole creditors; for they found that curators, tutors, and magistrates, who were only bound ratione officii, the discharging of one of them will not free the rest, except it be upon payment.
