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.
Wallace v. Campbell
Date: 13 July 1749 Case No. No 224.
The benefit of the septennial prescription may be renounced.
See No 214. p. 11013.
Click here to view a pdf copy of this documet : PDF Copy
Campbell of Inverasragan having become cautioner for his brother Archibald, merchant in Inverary, to Campbell of Stonefield, in a bond of L. 100 Sterling, he paid the debt after the seven years were run, and thereafter obtained a disposition from his brother to his tack of a house in Inverary, for his relief.
In a competition between Inverasragan and Thomas Wallace, who had adjudged the subject prior to the said disposition in relief, it was objected by Wallace, That it was not in Inverasragan's power to rear up that debt in prejudice of his adjudication, by his neglecting to take the benefit of the exception he had by law to it, by the lapse of the seven years.
The Lords “Repelled the objection, in respect it could not appear but that Inverasragan had promised payment within the seven years.”
Though it has been doubted, whether one bound as cautioner could renounce the benefit of the act of Parliament anent principals and cautioners, in respect of the words of the act of Parliament, “That no man binding cautioner shall be longer bound than for seven years after the date of the bond;” yet, it is now of a long time a settled point, that these words are only to be understood of the obligation he came under by the bond itself; but that he may, by writ or promise, referring to the said cautionry obligation, become bound simply; and, accordingly, a bond of corroboration, granted by a cautioner, has, by repeated decisions, been sustained.
Another objection to this bond vide, also repelled of this date, inter eosdem, voce Writ.
Fol. Dic. v. 4. p. 102. Kilkerran, (Prescription.) No 17. p. 423.
