Scottish Court of Session Decisions

The suspender, Captain Cruickshank, in 1822, joined with eight others in a bond to the British Linen Company for a cash-credit, to be operated upon by one Stewart, to the extent of £400, it being declared that no suspension of any charge for the balance, ascertained by a stated account from the bank books, should pass but on consignation only. Stewart became bankrupt in the end of the year 1828, the last operation on the credit being of date November 18 of that year, when there stood a balance against him of £375, besides interest for six months. No steps were taken by the Bank till March, 1830, when the balance had increased by accumulations of interest, the interest of each year being regularly added to the principal sum, to £410, they raised letters of horning on the bond. Three of the co-obligants, besides Stewart, had by this time become insolvent, so that the amount due, apportioned among the remaining six, amounted to about £70 each; and, on the 31st March, the agent for the Bank wrote the suspender in these terms:—“The British Linen Company have sent me a horning upon Mr John Stewart senior's cash-account bond, to be executed against the cautioners, of whom you are one; but, before sending a messenger to your house, I think it right to give you this opportunity of sending your proportion of it, which will amount to about £70 sterling. I shall expect to hear from you in course.”

The suspender, on the 10th May thereafter, paid £25; and, on the 24th, £45, receiving on this last occasion from the bank-agent the following acknowledgment:—“You have this day paid £45 farther to account of Mr John Stewart senior's cash-account with the British Linen Company, for which you are an obligant. This sum, with £25 formerly paid by you—in all £70—will, I hope, be all that may be required from you.”

From other co-obligants, the Bank received the farther sum of £140, reducing the balance due to £236, and the suspender heard no more of the matter till the month of June, 1834, by which time three others of the co-obligants had become insolvent. A demand was then made on the suspender, under threats of diligence, for the sum of £275, as the balance due on the cash-credit. This balance included interest from the date when the letters of horning were taken out, and it omitted to give credit for the £25 paid on the 10th May, 1830. Thereafter, a charge being given for payment of this sum, with interest from the date of charge, Captain Cruickshank presented a bill of suspension, on the grounds—

1. That no credit had been given in for the sum of £25.

2. That the chargers had, by their conduct and delay in regard to the other co-obligants, liberated the suspender; and

3. That the charge for a sum, including annual accumulation of interest, was contrary to the common law, and to the warrant in the letters of horning.

To this it was answered—

1. The chargers are willing to allow to be deducted this sum of £25, and a farther sum of £91, obtained since the charge from other co-obligants.

2. Mere delay to proceed against co-obligants can never liberate any of their number, and there was here no giving of time, and no undertaking that the suspender's share would not exceed £70.

3. In all bank accounts, the interest is annually accumulated, and the obligation in the bond necessarily covered interest, calculated on this principle; and,

4. At all events, the bill cannot be passed without consignation, in terms of the condition in the bond.

The Lord Ordinary passed the bill, to the extent of the payments above admitted, but quoad ultra refused it.

The suspender reclaimed, but