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Scottish Court of Session Decisions >>
Hogg and Company v Holden. [1765] Mor 11029 (9 July 1765)
URL: http://www.bailii.org/scot/cases/ScotCS/1765/Mor2611029-227.html Cite as:
[1765] Mor 11029
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.
Hogg and Company v. Holden
Date: 9 July 1765 Case No. No 227.
A party granted a letter, promising to see the debt of another paid. Found, that the septennial prescription did not apply.
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Hogg and Company, merchants in London, being creditors in certain sums to Richard Holden, Abraham Holden, his brother, wrote to them as follows: “(13th January 1753.) I am very much obliged to you for this, as well as former favours done my brother. For this L. 50 you have given your acceptance, at six months date, I will see you paid, though he should not return; and, if you think a further acknowledgment or security requisite, shall have it. I had a letter from him of the 24th last, wherein he informs me, that he had an opportunity to carry out goods to a pretty large value, and had applied to you, who was so good as to send him your acceptance for L. 50, at six months date, and proposed to send you his will and power till he returned; however, though he should not send it, I will see you paid.”
In 1764, Hogg and Company brought an action against Robert Holden, son and heir of Abraham, for payment of this sum.
The defender pleaded the septennial prescription, upon the act 1695, c. 5.
Answered for the pursuers; The act gives the benefit of that short prescription to such only “as are expressly bound for another as cautioners, or who have a clause of relief in the bond, or a bond of relief apart, intimated personally to the creditor at his receiving the bond.” As none of these is the case here, Abraham Holden was not a cautioner in terms of that statute; and, therefore, the defender cannot plead the benefit of it.
Replied; The defender's father was strictly and properly a cautioner for Richard. The letter founded on contains nothing that can import a novatio of the debt, or a freedom of the principal debtor from payment; on the contrary, Abraham binds himself only in case Richard should fail to pay. The case appears extremely similar to one collected by Lord Harcarse, June 1661, Home against Lockhart, No 1. p. 2072.; and another by Fountainhall, 20th January 1693, No 2. p. 2072.; in both which, persons bound much in the same terms with Abraham Holden, were found to be cautioners not expromissors.
Duplied; It is unnecessary to enquire whether Abraham Holden was properly a cautioner or not. It is certain, he was not a cautioner in terms of the statute, which, being correctory, may not be extended beyond the words; More against Forbes, 16th February 1710, No 212. p. 11011.; Rutherford against Scot, 8th February 1715, No 213. p. 11012.; Blair against Dempster, 20th January 1747, No 222. p. 11025.
“The Lords found, that the action was not cut off by the septennial prescription.”
Act. Dav. Græme.Alt. John Douglas.Clerk, Pringle.
Fol. Dic. v. 4. p. 101. Fac. Col. No 22. p. 37.
