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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Lauchlan Duff v William Innes of Sanside. [1771] Hailes 399 (6 February 1771)
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Cite as: [1771] Hailes 399
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[1771] Hailes 399
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PRESCRIPTION.
Subject_3 Quinquennial prescription of the Act 1669, c. 9, pleadable by the cautioner of the tenant.
Date: Lauchlan Duff
v.
William Innes of Sanside
6 February 1771 Click here to view a pdf copy of this documet : PDF Copy
[Faculty Collection, V. 259; Dictionary, 11,059.]
Pitfour. The case of the defender does not come either within the words or the spirit of the Act 1695.
Monboddo. In the case of Hunter, 9th July 1765, it was found that an obligation as cautioner for payment of a bond, formerly granted, did not come within the statute.
Gardenston. Cautionry is an accessory obligation. How can the debt subsist against the cautioner if prescribed against the principal?
Kennet. The defence is not good, because the debt is constituted by writ.
Kaimes. I am not satisfied as to that. Will the separate deed of Innes keep the question open as to the tenants?
Hailes. The defence in this cause has begun at the wrong end. The first thing to be done was to inquire into Lord Caithness's management with his factors and tenants. For ought that we know, Sandside's cautionary obligation may have been at an end, by an actual clearance with the principals. This inquiry was the more necessary, because demands were made against Sandside by the executor of Lord Caithness, which have, in the course of this process, been proved extinguished by writing.
Auchinleck. The quinquennial prescription cannot take place here; for Innes became bound to see the debt paid. Lord Caithness had no farther claim against the tenants.
President. The letter mentioning the sum is expressly conceived as cautioner. He did not take upon himself the obligation of the tenants. He is only subsidiarie liable in either debt.
On the 6th February 1771, “The Lords repelled the defence on the septennial prescription; but sustained as to quinquennial prescription. 7th March 1771, adhered.”
Act. C. Gordon. Alt. D. Armstrong. Rep. Stonefield. Diss. As to septennial prescription, Auchinleck, Barjarg.
The electronic version of the text was provided by the Scottish Council of Law Reporting