Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 ACCESSORIUM SEQUITUR PRINCIPALE - PRESCRIPTION.
Subject_3 Diligence used upon a Bond corroborated, found not to save from prescription the relative bond of corroboration.

Trustees of Thomas Boyd
v.
The Earl of Home

Date: 11 February 1777

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[Fac. Coll. VII. 377; Dic. Appen. I; Acces. Seq. Prin. No. I.]

Covington. This is not a bond of corroboration, properly so called, but a bond accumulating the debt, principal and interest; and it is a novum debitum which may prescribe independent of the original bond. I have a doubt on the other ground, namely, the judgment of the commissioners of inquiry.

Monboddo. It would look strange if we were to give a judgment contrary to that given by the commissioners. I have always thought that a bond of corroboration is different from an original bond, for the interest is accumulated.

Braxfield. It is a certain proposition, that when a number of different persons are bound in payment of one debt, a document taken against any obligant preserves the bond from prescription against the rest; for prescription is founded on a presumption of payment juris et de jure, and a document taken excludes that presumption. If a bond of corroboration were a novum debitum, I could understand the distinction suggested; but in truth a bond of corroboration always refers to the original debt. If payment is not made of the original bond, it is impossible that the bond of corroboration can be paid. A document taken against a principal debtor is good against the cautioner; and it matters not whether the caution is in the same bond or in a different one.

President. I admit that diligence done against one cautioner would keep the bond alive against another; but I take the cause as it is before us: here is a gravior obligatio than the original one, for the interest is accumulated into a principal sum. Whenever an obligation is entered into, separated from the original obligation, the law will presume against it after forty years. The bond of corroboration may have been discharged.

Kaimes. The radical foundation of the negative prescription is the security of the lieges. That unexpected distress may be prevented, the diligence must be intimated to the debtor, in order to put him on his guard. Hence letters of horning, and the registration of a bond, do not interpel the debtor, and, consequently, interrupt not prescription.

Covington. Were the foundation of negative prescription a presumed payment, the contrary might be proved by oath of party, which, however, is not admitted: the law presumes a discharge.

Gardenston. This is a just debt. I cannot conceive how a bond of corroboration can be a new debt,—it is a relative security. The accumulation of interest is a reasonable accession to the original security.

On the 11th February 1777, “The Lords sustained the objection of the negative prescription against the bond of corroboration;” altering Lord Auchinleck's interlocutor.

Act. J. Morthland. Alt. D. Rae.

Diss. Alva, Gardenston, Stonefield, Ankerville, Braxfield.