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Scottish Court of Session Decisions >>
Gilbert More, Writer in Edinburgh, v Sir Samuel Forbes of Foveran. [1710] Mor 11011 (16 February 1710)
URL: http://www.bailii.org/scot/cases/ScotCS/1710/Mor2611011-212.html Cite as:
[1710] Mor 11011
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.
Gilbert More, Writer in Edinburgh, v. Sir Samuel Forbes of Foveran
Date: 16 February 1710 Case No. No 212.
A person who obliges himself by letter to procure security to the creditor, in bond granted by others, or to pay the debt himself, is not a cautioner in terms of the act 1695, and not entitled to the benefit of the septennial prescription.
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Sir Samuel Forbes, to stop diligence at the instance of Gilbert More against Robert Keith of Fedderate, alias Lentush, and Mr Alexander Johnston merchant in Edinburgh, for 600 merks contained in their bond, having by his letter August 5th 1697 to Mr More, obliged himself to procure security to him, or to pay the debt betwixt and Martinmas then next; it was alleged for Sir Samuel, when pursued for payment, That he being only a cautioner by his letter, was free, in respect no diligence was done thereon within seven years of the date, in the terms of the act of Parliament 1695. And he must be understood a cautioner, in so far as the letter was accessory and relative to, and corroborative of an antecedent principal obligation, and implied that he was to be relieved by the granters thereof.
Answered for the pursuer; The letter can never import a cautionary, Sir Samuel being therein obliged as correus debendi without any express quality of relief; and the granter of a simple bond of corroboration is not a cautioner in the terms of the cited act of Parliament, but truly a co-principal.
The Lords found, that Sir Samuel Forbes was not a cautioner in the terms of the act of Parliament I695; and therefore could not plead prescription.
