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.
Creditors of Park v. Patrick Maxwell
Date: 16 February 1785 Case No. No 229.
The benefit of the act 1695 extends not to co principals, though there be muual stipulations of relief.
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Arthur Park and William Rowand granted bond thus: “We grant us to be justly addebted and owing, equally betwixt us, the sum of L. 67, &c.; which sum we bind and oblige us, conjunctly and severally, to pay, &c And we oblige us to bear just and equal burden with each other in the premises, and to free, relieve, disburden, and skaithless keep one another, hinc inde, thereanent, pro rata parte,” &c. No diligence was done upon this bond within seven years from its date. Afterwards, however, an adjudication having been led for the whole debt against the subjects of Park, his other creditors
Objected; Park being, as to one half of the sum, a cautioner, having in his favour a clause of relief in the bond, was, on the lapse of seven years, “eo ipso free of his caution,” by virtue of the statute 1695; and so far the adjudication is null. For there is not any distinction to be made between those co-obligants whose interests and cautionary engagements are reciprocal, and such as interpose themselves as cautioners only; January 1728, Muir contra Ferguson, No 216. p. 11014.
Answered; The statute is in favour of those cautioners only who have a total relief; not of co-principals who have a mutual relief; whether it arises ex lege, or from stipulation; and therefore, two persons having granted bond, with a clause of mutual relief, one of them having been charged for the whole by the creditor, was found not to have the benefit of the statute; 22d January 1708, Ballantine contra Muir, No 211. p. 11010.
The Lord Ordinary “repelled the objection;” and a reclaiming petition having been preferred to the Court by the objectors, it was refused, without answers.
Lord Ordinary, Kennet.Act. Sinclair.
Fol. Dic. v. 4. p. 101. Fac. Col. No 198. p. 311.
