Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PRESCRIPTION.
Subject_3 A person granted a letter, promising that a sum, due by other parties, for which they granted acceptance, should be paid. Found not to have the benefit of the septennial limitation, nor of the sexennial prescription.

Isobel Howison and Thomas Bell
v.
John Howison

Date: 7 December 1784

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[Fac. Coll. IX. 285; Dict. 11,030.]

Braxfield. It will not follow that every one who is in effect nothing more than a cautioner, has the benefit of the act. A man who is bound conjunctly and severally, and afterwards gets a bond of relief, and intimates it to the creditors, will not thereby get free as a cautioner. Mr Howison does not fall under any of the predicaments of the act. The creditor has an additional security; but how does it appear from the letter that Mr Howison was not the principal debtor?

Eskgrove. I cannot think that every person who grants an additional security is entitled to the benefit of the act. A bill is accepted by three persons, without any distinction which is principal and which cautioner; then a separate obligation is granted, independent of the other, in the event of the money not being paid. This is not a cautionary obligation under the Act 1695; and that act, as it deviates from the common law, ought not to be extended to cases from which it does not provide.

Justice-Clerk. No person can claim the benefit of the Act 1695, unless he fall within the terms of it. Mr Howison does not. I may have some suspicion in my own mind, and even some evidence that Howison was a cautioner: but that is not sufficient; he might have been principal as well as cautioner.

Monboddo. The definition of the Roman law, as to a cautioner, is, that he is one qui accedit alienæ obligationi majoris securitatis causa. This is exactly the case of Howison: he does not become bound to pay, but to see the creditor paid; that is, by the three debtors.

President. I cannot find any thing in the obligation that makes Howison other than a principal debtor. I do not see that he had relief against the others. The Act 1695 is a correctory law, and it does not extend to every one who is in truth a cautioner.

On the 7th December 1784, “The Lords repelled the defence on the Act 1695;” altering the interlocutor of Lord Monboddo.

Diss. Stonefield, Monboddo, Swinton.

Non liquet, Henderland.

Braxfield. As to sexennial prescription, this obligation does not fall under it. It is a holograph obligation, good for twenty years.

Eskgrove. The Act 1772 respects promissory-notes; and not an obligation like this, which is not of the nature of a promissory-note.

President. The using of the word promise is no evidence that a promissory-note was here intended.

On the 7th December 1784, “The Lords found that the letter from Howison does not fall under the sexennial prescription of the statute 12th Geo. III.”