BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Captain Gordon v Mr John Cuming. [1707] Mor 11190 (17 December 1707)
URL: http://www.bailii.org/scot/cases/ScotCS/1707/Mor2611190-370.html Cite as:
[1707] Mor 11190
The seven years prescription of bonds begins to run from the date of the bond, and not from the term of payment, though before that the creditor is not valens agere; for such are the express words of the act.
Click here to view a pdf copy of this documet : PDF Copy
Captain Gordon, brother to Earlston, being cautioner in a bond for Sir George Campbell of Cesnock, his father-in-law, to Mr John Cuming, a creditor in a certain sum by bond, and being charged with horning for payment, he suspends, for this reason, that being per expressum only cautioner, he is free by the 5th act of Parl. 1695, declaring, if they be not insisted against in seven years, they shall be ipso facto free of their cautionry; and ita est this bond was in 1700; and he is at a small loss, for he has an heritable bond and infeftment in the principal debtor's lands, which has made him the more slack and negligent against Mr Gordon. The Lords doubted on two points: 1mo, Whether the seven years ran from the date of the bond, or the term of payment, before which the creditor is not valens agere; but having read the act, it commenced from the bond, which seemed very mysterious; for some bonds bear a very long term of payment, which will render these bonds with cautioners very insignificant. The second was, if the minority of the principal debtor's heir will not stop this septennial prescription; but there being nothing of this alleged on, it was laid aside; all the difficulty and strait was, that the suspension was craved without caution or consignation; but there being no answer for the charger, though intimated to him, they passed it in these terms, in respect the act of Parliament is so plain, Though the act was a great inversion of our former law, yet, if it were minded by creditors, it were an easy matter once in seven years to interpel the cautioner, or use some legal interruption against him to stop the prescription; but country people do forget the tenor of that new act, so much debording from the former law and practice, and made upon occasion of Langton and Cockburn, so interwoven as co-cautioners, and their sudden breaking, to the loss of many poor family. Since this act, few take bonds with cautioners, but bind them all as correi and principals, whatever bonds of relief they may have among themselves in writs apart.
Fol. Dic. v. 2. p. 124. Fountainhall, v. 2. p. 404.
