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.
John Ballantine, Merchant and late Provost of Ayr v. Robert Murr, present Provost thereof
Date: 21 January 1708 Case No. No 211.
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In the cause at the instance of John Ballantine against Robert Muir, for payment of 2000 merks, in a bond granted to John Ballantine by the said Robert Muir and other three persons as co-principals bound conjunctly and severally, and obliged to relieve each other pro rata; Robert Muir was found liable for the whole sum, though no diligence had been done upon the bond within seven years of the date; in respect he was not a cautioner in the terms of the act of Parliament 1695; which conectory law extends not to bonds bearing clauses of mutual relief, which is implied, though not expressed; but only to bonds where one of more correl is obliged to relieve the rest of the whole debt.
Fol. Dic. v. 2. p. 116. Forbes, p. 225.*** Fountainhall reports this case:
1708. January 22.—Robert Muir, provost of Ayr, and three others, having granted bond for 2000 merks to John Ballantyne, factor for Alderman Smith, and being charged thereon, he suspends on this ground, that the bond bore a clause of mutual relief, and so fell under the 5th act 1695, declaring all cautioners free after seven years, if not insisted against; and ita est, this bond is dated in 1699, and so prescribed quoad three parts, and he is willing to pay his fourth share, some of the other obligants being dead and broke. Answered, This case fell noways under the act of Parliament; for that was where one was principal and the rest cautioners, or where one was obliged to relieve his co-obligant of a greater share than what he would be tied to by law; but here all the four were bound as co-principals, and only a clause to relieve one another pro rata, which is implied though it had not been expressed; and so being no more but what they were bound to perform without it, it noways falls under the case of that act. The Lords found, the act being correctory, non est recedendum a jure quod prius obtinuit, except where the case was in the precise letter or meaning of the law; and that this clause inerat de jure, et ex natura rei, though it had been omitted; and therefore repelled the reason of suspension, and found this bond fell not under that act; but in respect of the clause, arising from a new law, they assoilzied from the penalty, he always paying the principal and annualrent within the days of the charge.
