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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mr William Scot v Thomas Rutherford. [1715] Mor 11012 (8 February 1715)
URL: http://www.bailii.org/scot/cases/ScotCS/1715/Mor2611012-213.html
Cite as: [1715] Mor 11012

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[1715] Mor 11012      

Subject_1 PRESCRIPTION.
Subject_2 DIVISION VII.

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.

Mr William Scot
v.
Thomas Rutherford

Date: 8 February 1715
Case No. No 213.

One granting a bond of corroboration, though he has relief, is not understood to be a cautioner, so as to have the benefit of the act 5th, Parl, 1695.


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Thomas Rutherford having charged Mr William Scot upon a bond of corroboration granted by the said Mr William Scot, he suspends on this reason, that he was not bound in the original bond, but only became bound in the corroboration; and consequently was a cautioner for the obligants in the bond corroborate, and was now free by the course of more than seven years before the charge, conform to the 5th act Parl. 1695.

It was answered; That the said act did not extend to every cautionary obligation, but only such as are bound for and with another conjunctly and severally in any bond or contract for sums of money, and then proceeds to explain who shall be reckoned cautioners, viz. such as are expressly bound as cautioners, or as principals, or co-principals, providing they have a clause of relief in the bond, or a bond of relief apart intimate particularly to the creditor at the receiving of the bond. The suspender is indeed adpromissor by the bond of corroboration, and relief is implied in law; but he is not bound expressly as a cautioner, nor has a clause of relief in the bond, nor a bond of relief apart; and the Lords have in all cases interpreted this correctory law strictly.

“The Lords found the act did not comprehend an obligant in a bond of corroboration.

Fol. Dic. v. 2. p. 116. Dalrymple, No 136. p. 189. *** Bruce reports this case:

1715. February 9.—A bond of corroboration being granted by Mr William Scot to Knowsouth's author, and he the assignee now after seven years insisting for payment; the point to be discussed was, Whether the act of Parliament 1695, anent the prescription of cautionaries, can be extended to the granter of the bond of corroboration?

Alleged for the defender; That he was to be accounted a cautioner, his obligation being but accessory, and relief being competent to him by law against the principal debtor.

Answered for the pursuer; That the said law being correctory, is not to be stretched by consequences. For the act does only liberate such as, 1mo, did engage for and with others qua cautioners; or, 2do, such in whose favours there was a clause of relief inserted in the bond; or, 3tio, to whom there was a bond of relief apart intimate to the creditor: Now the defender here is in a distinct case from any of these three. And the Lords, 21st January 1708, Ballantine contra Muir, No 211. p. 11010., did find, that it did not extend to bonds bearing clauses of mutual relief, but only to bonds where one of more correi is bound to relieve the rest. And 16th February 1710, Moir contra Foveran, No 212. p. 11011., they found, that an obligatory missive, whereby, the writer obliged himself to procure security to the creditor of a former bond, or to pay the debt betwixt and a precise term, did not fall within the verge of the said act.

Replied for the defender; That the bond of corroborntion being an accessory security, and no innovation of the debt, doth entitle the granter to the privilege of the act as cautioner: And that the first decision was nowise paralel to the present case; because a clause of mutual relief is only an explication of what the law provides, where several persons are bound as full debtors for one and the same debt: And that the second decision did as little quadrate; because the granter of the missive had bound himself ad factum præstandum, which was not of the nature of a cautionary for a debt.

The Lords found, that the granter of the bond of corroboration is not in the terms of the act of Parliament 1695.

Act. Hay. Alt. Sir Ja. Stuart. Clerk, Alexander. Bruce, v. 1. No 61. p. 74.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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URL: http://www.bailii.org/scot/cases/ScotCS/1715/Mor2611012-213.html