Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

John Semple
v.
Annabel Ewing

Date: 24 November 1741

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The question here was about the effect of diligence upon an obligation of cautionry, within the seven years; whether it only secured what fell due in that time, (these are the words or the Act 1695,) or if it perpetuated the obligation as it was at the beginning, and so, if it was a subject bearing annualrent, made it still continue to do so even after the seven years. It was argued that diligence being, by the statute, an interruption of the prescription, it behoved to have that effect.

But the Lords found,—That the diligence was no interruption of prescription in this case, because there was no prescription by this statute, but a limitation of the cautionary obligation to a certain term ; so that the effect of the diligence was not to continue the obligation beyond that term, which could not be by the nature of it, but only to secure what falls due within that term. See Forbes, December 10, 1712, Stuart against Douglas.