Scottish Court of Session Decisions

Subject_1 DECISIONS of theLORDS OF COUNCIL AND SESSION, reported by LORD KILKERRAN, ADVOCATE.

Andrew Rowand
v.
William Lang.

Date: 13 June 1738

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The circumstances of this case, and the arguments on both sides, are stated in the report of it, by C. Home, (p. 148, Mor. 11,041.) It is also reported by Elchies, (Cautioner, No. 8.)

Lord Kilkerran's note is as follows:—

“The case of Hunter and Muir was just this : Samuel Muir, as principal, and John Muir, his father, as cautioner, granted bond, 21st May, 1701, to Mr. John Thomson, schoolmaster at Kilmarnock, for 3000 merks. James Hunter, as assignee to 800 merks of that sum, pursued Robert Muir, as representing his father, the cautioner, upon the passive titles. Against which process Robert propones his defence on the act 1695. Answered Hunter, that within seven years of the date of the bond, viz. the 2d May, 1708, the same was registrate in the town court books of Air ; and on the 19th of said month, two days within the seven years, a charge was given to the now deceased cautioner by a town officer ; by virtue of a precept on the registrated bond, which perpetuate the obligation for what fell due within the seven years; which the Lord Ordinary sustained, and theLords affirmed, after two reclaiming bills, both refused without answers. The last is January 6, 1718.

“There was another case in the 1718. William Stuart of Castle Stuart, as principal, and Patrick Coltrain of Drumovans, as cautioner, granted bond for 500 merks, to Andrew M'Ormock, on the 14th of March, 1711. The creditor obtained decreet in 1717, against John Coltrain, son of the cautioner ; but this decreet was both a non suo judice, viz. before the Commissary of Wigton, and wholly in absence. On this decreet the creditor having arrested, and pursued a furthcoming, compearance being made for the principal debtor, he objected the act 1695, anent principals and cautioners, which the Lord Fountainhall sustained, but which the Lords, on a reclaiming bill, altered, and repelled the defence.

The argument in that petition was, 1mo, From the intention of the law, which was to prevent the frequent bad consequences of men's facility in becoming bound cautioners ; to effectuate which, it statutes, that they should be no longer bound than seven years. But by no means was it intended that any alteration should be made in the nature of the obligation, with respect to what fell due within that time, more than the statute had never been made.

And so the words, agreeable to this intention, are, without prejudice to the cautioner's being bound, conform to the terms of the bond, within the seven years, as before the making of this act. There is, indeed, a second provision, that what legal diligence by inhibition, &c. But as this is a clause not in favour of the cautioner, but of the creditor, it cannot put the creditor in a worse case than he would have been by the preceding clause, without it. The statutory part is, the cautioner shall not be bound longer than seven years:—two provisos, That as to what falls due within seven years, he shall be in the same case as if no such act had been made. Had the act stopped here, the cautioner could have nothing to say; for thereby, as to what fell due within seven years, it was of the nature of a prescription. But then it goes on to an ampliate in favour of the creditor, (unnecessary, it is true,) but shall it make the creditor worse ? Next, it was argued, as here in the minutes, that by the contrary doctrine an inhibition should be of no use. 2do, Should any diligence be inchoate against a cautioner within seven years, and he defend, the debt should be lost, unless completed in his time; for the creditor could not follow it furth, but behoved to begin afresh with his heir.”

The Lords also, in this case, repelled the defence.

It is certain that, at the time of the above two former cases, the notion the Judges had was, that as to what fell due within the seven years, the Act of Parliament had introduced a proper prescription, which was to be interrupted as any other prescription; but that as to what fell due after the seven years, it was not at all a prescription, but an ipso jure liberation. This is distinctly remembered to have been the very language of the Bench at that time, agreeable to the observation above made, in that case of Castle Stuart and Coltrain,—that as to what falls due within the seven years, the cautioner is in the same case as if no such act had been made.

But though this was argued by some of the Lords at advising the present case, I cannot say the decision was laid upon it. For another observation seemed to have weight with others, viz. that a charge given within the seven years, which was a diligence that could be followed furth, and so remained effectual in terms of the last clause in the statute ; though neither was this expressed as the ratio decidendi, for, as said is, the interlocutor went in general repelling the defence.”