Scottish Court of Session Decisions

Subject_1 CAUTIONER.

Rowand
v.
Lang

1738, June 13.
Case No. No. 8.

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This case on the act 1695 anent cautioners was fully reasoned. The President gave us a very new and pretty singular opinion of it, viz. that the obligation for what falls due in the seven years is perpetual without any diligence, but that the cautioner was not liable for what fell due after that time. But none of us joined with him in that opinion, and indeed the reverse has been very fully received. But the point chiefly argued was, whether diligence had the same effect as an interruption has with regard to prescription, so as to perpetuate the cautioners obligation for what fell due in that time, even though that diligence could not be followed out any further? As where a charge for payment upon a precept of poinding or charge of horning is used against a cautioner who afterwards dies before any thing has followed upon it, whether that perpetuates his obligation against his successors? or 2dly, If diligence within seven years has no further effect than as to what can be recovered by that diligence? The Lords were divided in their opinion. The last seems most agreeable to the words of the act, were it not that some diligences are there mentioned that are only prohibitory, and properly cannot affect any subject, such as inhibition. The first was in terminis agreeable to the decision Muirie against Hunter in 1718. I thought there was no occasion for determining that point here, because the charge upon the precept of poinding might yet be followed out by poinding, notwithstanding year and day is expired, since the cautioner is alive, as in the case Dun against Provost Gardiner Stewart in 1724. 2dly, That the very horning now suspended was a following out that charge, which by the act of Parliament ought to precede any horning on the Magistrates' decreet or precept; and when the horning was looked into, it narrated both the precept and charge, and proceeded upon it. Therefore it carried (I think) unanimously to repel the reason of suspension as far as concerned the principal, penalty, and annualrents, that fell due in the seven years. But Royston and some others expressed the reason of their vote, in respect that the horning was a following out of the charge upon the precept. On the other hand, several declared that their opinion would have been the same though there were no such specialty;—so that point was not now decided.