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Margaret Bourboun and her Husband v James Mongomery, Merchant in Glasgow. [1711] Mor 11216 (16 February 1711)
URL: http://www.bailii.org/scot/cases/ScotCS/1711/Mor2711216-390.html Cite as:
[1711] Mor 11216
What Effect, if the Pursuer lay open to a Ground of Compensation?
Margaret Bourboun and her Husband v. James Mongomery, Merchant in Glasgow
Date: 16 February 1711 Case No. No 390.
The septennial prescription being alleged against a cautionry obligation, the charger an-swered, that for a part of the time he lay open to a ground of compensation, and so was non valen agere. This answer was repelled.
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Margaret Bourboun having, as executrix to Archibald Bourboun, caused charge James Montgomery for payment of L. 113:6:8, contained in in a bond granted to the defunct by him, as cautioner for William Boig, John Crawford, and John Boig; James Montgomery suspended, upon this ground, That the bond quoad him a cautioner was prescribed, no diligence having been done thereon within seven years after the date, in the terms of the act of Parliament 1695.
Answered for the charger; The seven years prescription cannot operate in favour of the suspender; because, within the seven years, compensation was competent to him against the creditor in the bond, which did interrupt the prescription during the competency thereof; January 1705, Sir John Gordon of Park contra Hay of Ranes, No 137. p. 2675. For since it was in vain for the creditor to pursue, while the debtor had a clear defence of compensation to exclude him, the seven years can only run from the time that the ground of comsation was taken off.
Replied for the suspender; A ground of compensation is never to be regarded, unless where it is applied; and here the cautioner never pretended to apply his ground of compensation to the payment of the debt charged on; but, on the contrary, without regard thereto, took payment of what was owing to him by the creditor in the bond; so that it cannot be pretended that the creditor was non valens agere.
The Lords sustained the reason of suspension upon the allegeance of prescription, in respect the compensation was not applied.
Forbes, p. 501.*** Fountainhall reports this case:
1711, February 20.—Boig and Crawford grant bond, in February 1702, to Archibald Bourboun for L. 113 Scots, wherein James Montgomery, merchant in Glasgow, is cautioner; who being charged for the debt, suspends, on this reason, that he is free by the 5th act 1695, declaring all cautioners free if not insisted against within seven years, and this will be five or six months more. Answered, Offered to prove interrupted; because, within the said seven years, James Montgomery had a ground of compensation competent to him against Bourboun, the creditor, in so far as he was his factor, and by uplifting his rents was his debtor; and though he afterwards counted for them, and got a discharge, yet during the time he had my money in his hands, he could not have pursued me quia intus habuit; and so that time must be deducted from the prescription; for contra non valentes agere nulla currit præscriptio, as was found betwixt Lauderdale and Tweeddale, No 374. p. 11193.; and on the 22d June 1675 Earl of Wemyss contra Gall, No 364. p. 11183. that a bound might prescribe against the husband's jus mariti, but not against the wife, she not being valens agere stante matrimonio; and that pressription does not run against a creditor, while the debtor has a ground of compensation arising to him, was found in January 1705, betwixt Sir John Gordon and Hay, No 137. p. 2675. where the long prescription was found excluded by a compensation. Answered, It was never heard that compensation extinguished any debt till it was applied; and much less where it ceased by payment before it was proponed; and such doctrine were to pay one with logic. Then it was alleged, 2do, Interrupted by the acts of Parliament adjourning the Session; which being all discounted, will bring the pursuit within the seven years. Answered, All these recesses do only relate to annual prescriptions allenarly, and so can never be extended to this septennial one. The adjournment in 1702 does indeed speak of short prescriptions in general; but that was only for 18 days; which deduction will not serve the turn. The Lords repelled both the allegeances, and found the bond prescribed quoad the cautioner; though the act deserves little favour or extension.
