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.
Coronet Norie v. Porterfield of that Ilk
Date: 19 February 1724 Case No. No 214.
Found that a cautioner could not renounce the benefit of the act 1695.
Click here to view a pdf copy of this documet : PDF Copy
Porterfield being cautioner in a bond granted by George How to Coronet Norie, dated the 25th April 1699, did in December 1705, before elapsing of seven years from the date of the bond, subscribe a note on the foot of it, by which “he dispensed with any benefit he might have from the act of Parliament 1696 anent prescription of the cautioner's obligation, and declared himself bound notwithstanding thereof.”
In February 1713, Porterfield was charged upon this bond, and in a suspension he insisted, that he was free by the act of Parliament 1696, which statutes, “That no cautioner shall be bound longer than seven years after the date of the bond, but was thereafter, eo ipso, free of his cautionry.” And that though by the docauet he had renounced that benefit, yet the law being a public one introduced to prevent the bad consequences which might follow from men's facility in binding themselves as cautioners, it could not be dispensed with.
The Lords found, that Porterfield could not dispense with the act of Parliament; notwithstanding that it was pleaded for the charger, that one might renounce any benefit introduced by law in his own favours.
For the Charger, Sir Tho. Wallace.Alt. Arch. Stewart jun.Clerk, Murray.
Fol. Dic. v. 4. p. 102. Edgar, p. 37.
