Scottish Court of Session Decisions

Subject_1 CAUTIONER.

Scott of Farnish
v.
-

Date: 9 July 1752
Case No. No. 24.

Cautioner's right of relief continues, although he should pay after the seven years.

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The Lords found unanimously, (me referente for advice,) that a cautioner who is entitled to the septennial prescription by the act 1695, is not bound to take the benefit of it, but may after the seven years safely pay the debt, and loses none of the securities he got for his relief. Therefore a cautioner in two bonds having got an infeftment in lands for his relief, which the principal debtor sold long after the seven years were expired, his other creditors arrested the price in the hands of the purchaser, who raised a multiplepoinding; after which only the cautioner paid the two bonds wherein he was bound and took assignments. The arresting creditors objected to his infeftment, that he was sufficiently relieved by the running of the seven years, and therefore his infeftment for relief was extinguished. Yet the Lords repelled the objection and preferred him.

See Garden against Gregory, 21st January 1735, voce Hypothec.

See Hamilton against Cautioners of Menzies, 19th December 1742, voceExecutor.

See Sutherland against Lady Gees and Cautioner, 6th January 1737, voceReparation.

See Notes.

CHANCERY.

See Jurisdiction.—Member of Parliament.