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Scottish Court of Session Decisions >>
Halyburtons v Graham of Mosknow. [1735] Mor 2073 (12 July 1735)
URL: http://www.bailii.org/scot/cases/ScotCS/1735/Mor0502073-003.html Cite as:
[1735] Mor 2073
One person bound himself generally to pay all debts due by another to a third party. A debt prescribed quoad the principal, found not to be exigible against him.
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Graham of Mosknow, in the year 1687, “became bound to pay to Captain Blair, all debts or sums of money, and accounts resting by Irvine of Bonshaw, deceased, to the said Captain Blair, according to instructions of the same to be given in by him.” Within the years of prescription of this obligation, Captain Blair's representatives insisted in a process against Graham of Mosknow for payment of two bonds due by Irvine of Bonshaw to Captain Blair. The defence was, that these bonds were prescribed.—Answered, 1mo, That the prescription was interrupted by the aforesaid obligation: 2do, Supposing the prescription to be run, quoad Irvine of Bonshaw, Mosknow must be liable upon his own obligation, which was not prescribed.—Replied to the first, Taking an additional security from a third party will be no interruption quoad the principal debtor, unless done with his concurrence; far less will a general obligation make an interruption, which is not taking a document upon any particular debt.—Replied to the second, The defender is not an expromissor, who takes a debt absolutely and ultimately upon himself; he is only adpromissor, liable indeed directly to the creditor, but virtually cautioner and entitled to relief. Hence every exception competent to the principal debtor must be competent to him, and if he should pay he can have no relief: And the creditor has himself to blame, who allowed the debt to prescribe against the principal, which must operate in favour of the cautioner, equally as if he had granted a discharge; and it is triti juris that every security past from, quoad the principal, is eo ipso a liberation quoad the cautioner.——The Lords sustained the allegeance of prescription. See Prescription.
