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Scottish Court of Session Decisions >>
Sir Robert Monro v Bain. [1741] Mor 11017 (22 July 1741)
URL: http://www.bailii.org/scot/cases/ScotCS/1741/Mor2611017-219.html Cite as:
[1741] Mor 11017
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.
Sir Robert Monro v. Bain
Date: 22 July 1741 Case No. No 219.
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A bond of presentation granted in 1724 by Dingwall of Cambuscurry as principal, and Bain of Tulloch as cautioner, whereby they, bound themselves, That Cambuscurry should on a day certain compear personally at Inverness in the messenger's house, and then and there pay the hail sums, principal annualrent, and penalty mentioned in the letters of caption, with all other expenses of diligence, together also with the sum of L. 600 Scots of penalty to be paid by me and my foresaid cautioner, in case I the said Dingwall of Cambuscurry shall not compear day and place and hour above mentioned,’ was, in a suspension by the cautioner, “ found quoad the obligation upon him, to fall under the act of Parliament anent the prescription of cautionries.”
A simple bond of presentation that the debtor should present himself, would not have fallen under the act of Parliament; but the cautioner's being here bound that the debtor should also pay, was found to distinguish the case; notwithstanding it was pleaded, that by the words the cautioner being not bound to pay, but only that the principal should pay, and so the cautioner being only liable consequentially upon the principal's failure, he was no more bound for a sum of money than he is in a simple bond of presentation, whereby he becomes also consequentially liable upon the principal's failure to present. See No 211. p. 11010.
Fol. Dic. v. 4. 100. Kilkerran, (Prescription.) No 9. p. 419.
