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Scottish Court of Session Decisions >>
Millers v Short. [1752] Mor 11027 (19 February 1752)
URL: http://www.bailii.org/scot/cases/ScotCS/1752/Mor2611027-225.html Cite as:
[1752] Mor 11027
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.
Millers v. Short
Date: 19 February 1752 Case No. No 225.
The act 1695, about the prescription of cautionry, is not applicable where the term of payment of the bond is more than seven years after the date.
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By minute of agreement, John Miller became bound to assign certain sums, mentioned in a list, to Thomas Johnson, who, on the other hand, became bound to grant a bond for three-fourths of the sums conveyed. This agreement was executed, and Thomas Johnson granted a bond accordingly for L. 450 Sterling, with James Short, as cautioner and full debtor. The bond bears date 30th November 1751, and the term of payment is at Martinmas 1759. The cautioner's defence, in a process for payment, was the act 1695, introducing the septennial prescription. Answered, That act relates only to bonds for borrowed money; and, at any rate, can never apply to a bond, the term of payment of which is more than seven years after the date. The Court accordingly repelled the defence.
