Septennial Prescription of Cautionary Obligations, by act 5th Parl. 1695.
Subject_3 SECT. II.
Who entitled to the benefit of the act 1695. - Can the benefit of it be renounced.
Lady Henrietta Gordon v. Tyrie
Date: 16 November 1748 Case No. No 223.
A cautioner granting a bond of corroboration cannot plead the septennial prescription.
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In the year 1700, George Gordon at Mill of Ruthven as principal, and John Ross of Wardhouse as cautioner, became bound in a bond to the Duke of Gordon for L. 195 Scots. In 1705, John Ross the cautioner, and with him David Tyrie, on the narrative of the said bond, in which the said Ross was cautioner, became bound in corroboration thereof to the Duke for L. 192, as all that was then resting of the original bond.
In a process at Lady Henrietta Gordon's instance, as executrix to the Duke her father, against Tyrie for payment, he pleaded the septennial prescription, on the act anent cautioners, on this ground, that Ross was by the original bond only cautioner, nor did he cease to be cautioner by granting the bond of corroboration; and as the defender, by the bond of corroboration, only became a new cautioner with Ross, if Ross was entitled to the septennial prescription, so was he.
“The Lords repelled the defence;” not without observing, that it had been to be wished, that the act of Parliament had been so conceived, as to extend to corroborative securities, as the reason of the thing would seem to be the same. But the Lords thought themselves not at liberty to find that it did extend to corroborations, in respect of the words of the act, declaring the prescription to run from the date of the bond; and of the variety of cases, wherein it has been adjudged, that the act did not extend to corroborations; and of the many cases wherein, though the species facti was the same as in this, the defence was not so much as pleaded, in respect of the established practice; as in Sir Robert Pollock's case, 10th July 1745, No 58. p. 2125. voce Cautioner.
Fol. Dic. v. 4. p. 101. Kilkerran, (Prescription.) No 16. p. 422.
