Septennial Prescription of Cautionary Obligations, by act 5th Parl. 1695.
Subject_3 SECT. IV.
Effect of diligence during the seven years.
Andrew Rowand v. William Lang
Date: 13 June 1738 Case No. No 238.
A charge given to a cautioner by a town-officer, within the seven years, found sufficient to interrupt the prescription.
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Thomas Mitchell as principal, and the said Lang as cautioner, granted a bond to John Rowand for 100 merks, of date the 29th of January 1714, in the town-court books of Glasgow, and, that same day, both principal and cautioner were charged: as also, by another execution, it appeared they were likewise charged the year thereafter. Andrew Rowand being assigned to this bond, charged the cautioner, anno 1736, with horning; who suspended, upon this ground, That, by the act 1695, anent cautioners, the same was prescribed, there being no diligence executed within the seven years that could have any effect after the expiry thereof, the only thing done being a charge given by a town-officer two days before expiry of the first seven years, which could have no effect at all, because two days thereafter the seven years expired; and so neither poinding nor caption could follow thereon against the suspender, until after the time was elapsed. And, as to the other charge, it was good for nothing, being many months after the expiry of the first seven years. But, 2do, Granting the first charge were to be considered as an interruption of the prescription, (although the defence that arises from the act has scarcely any thing in common therewith;) yet the utmost length it could operate was to preserve the cautionary obligation from being cut off by the lapse of the first seven years; but, even on this supposition, it still preserved it a cautionary obligation, subject to the statute, and, therefore, as it lay over afterwards for more than seven years, without any diligence done, it became, of new, cut off by the septennial act.
Answered for the charger: The import of the statute is not only to save diligence done against the cautioner, within the seven years, for the principal sum and annualrents that fell due within that time, but it likewise declares, That such diligence shall have its course and effect. Now, one of the chief effects thereof is, to serve as an interruption to prevent the cautioner's obligation from prescribing, as to what it is declared to subsist for, in case of diligence within the seven years: and, if the gloss put upon the act by the suspender should hold, it were hardly possible that a cautioner's obligation could signify any thing, unless it attained its full effect, by poinding or adjudication, &c. in the lifetime of the cautioner, whereby the salvo, in favours of the creditor, would be of no avail; therefore the law must be understood to save, to the creditor, the principal sum and annualrents falling due within the seven years, by any diligence, in that period, sufficient to make interruption. And, with respect to the second point, it is a jest to pretend, That, after running the first seven years, a new prescription commences, as the act says no such thing, but, on the contrary, speaks of seven years from the date of the bond; so that, if any diligence was used for interruption within that time, the bond must subsist thereafter against the cautioner, for what fell due within that period, during the course of the long prescription.
The Lords repelled the reason of suspension, and found the letters orderly proceeded for the principal sum and penalty, and what annualrents fell due within the seven years.
