VI. SEPTENNIAL PRESCRIPTION OF CAUTIONARY OBLI GATIONS.

The statute 1695, cap. 5, is as follows:

His Majesty, and the Estates of Parliament, considering the great hurt and prejudice that hath befallen many persons and families, and ofttimes to their utter ruin and undoing, by men's facility to engage as cautioners for others, who afterwards failing, have left a growing burden on their cautioners without relief: therefore, and for remedy thereof, his Majesty, with advice foresaid, statutes and ordains, That no man binding and engaging for hereafter, for and with another conjunctly and severally, in any bond or contracts for sums of money, shall be bound for the said sums for longer than seven years after the date of the bond, but that from and after the said seven years, the said cautioner shall be eo ipso free of his caution: and that whoever is bound for another, either as express cautioner, or as principal, or co-principal, shall be understood to be a cautioner, to have the benefit of this act : providing that he have either clause of relief in the bond, or a bond of relief apart intimate personally to the creditor at his receiving of the bond; without prejudice always to the true principals being found in the whole contents of the bond or contract: as also of the said cautioners being still bound conform to the terms of the bond within the said seven years, as before the making of this act; as also providing that what legal diligence by inhibition, horning, arrestment, adjudication, or any other way, shall be done within the seven years by creditors against their cautioners, for what fell due in that time, shall stand good, and have its course and effect after the expiring of the seven years, as if this act had not been made.

Erskine, III. 7. 22.

DECISIONS.

Ross, 11. Dec. 1729, Mor. 11014.-Douglas, Heron & Co. 20. Nov. 1792, ib. 11032.-Bell, 14. Feb. 1727, ib. 11039. -M'Rankin, 22. June 1714, ib. 11034.-Park's Creditors, 16. Feb. 1785, ib. 11031.-Borthwick, 4. Feb. 1715, ib. 11008.- Millers, 19. Feb. 1762, ib. 11027.—Robertson, 2. Dec. 1736, ib. 11010.-Monro, 22. Feb. 1741, ib. 11017.-Hope, 4. Feb. 1715, ib. 1109.—M‘Kinlay, 14. Feb. 1781.-Balvaird, 18. Jan. 1709, ib. 1105.-Stewart, July 1726, ib. 11010.-Strang, 5. Jan. 1709, ib. 1105.-Bruce, 26. June 1793, ib. 11033.-Cuthbertson, 23. May 1823, Shaw, II. 330.- Rutherford, S. Feb. 1715, ib. 11012.-Lady Gordon, 16. Nov. 1748, ib. 11025.-Caves, 4. Dec. 1742, ib. 11020.-Hog & Co. 9. July 1765, ib. 11029.-Bertram, Gardner & Co. 3. March 1795.-Reid v. Maxwell, 17. Feb. 1780.- Anderson, 25. May 1821, Shaw. Hog, 13. June 1826.- Sharp, 24. June 1808.M'Niel, 21. June 1825.-M'Indoe, 18. Nov. 1824.Douglas, Heron & Co. 1. Mar. 1793, ib. 11045, affirmed on appeal.-Rowand, 13. June 1738, ib. 11041.— Irvine, 7. Jan. 1752, ib. 11043.-Reid, 17. Feb. 1780, ib.-Home, 19. Jan. 1773, ib. 10992.

VII. SEXENNIAL PRESCRIPTION OF BILLS OF EXCHANGE

AND PROMISSORY-NOTES.

The act 12. of Geo. III. cap. 72, and other statutory provisions, have already been quoted in the title "Bills."

Erskine, III. 7. 29. note.-Thomson on Bills, p. 695. -Bell, I. 394.

DECISIONS.

Gordon, 23. June 1784, Mor. 7532.-Douglas, Heron & Co., 19. Nov. 1793, ib. 4602, affirmed, 11. Nov. 1796.Tweedie, 5. Mar. 1782, ib. 11125.-Stephenson, 16. June 1807, ib. App. No. 20. voce " Bill of Exchange." — Laidlaw, 31. May 1826.—M'Niel, &c. 21. June 1825.-Philp, 15. Jan. 1800, ib. App. No. 9. voce "Bill of Exchange.”— Clarkson's Trustees, 8. June 1820, F. C.-Houston, 31. May 1822.-Scott, 3. Feb. 1784, ib. 11126.—Russell, 23. May 1792, ib. 11130.—Lindsays, 19. May 1797, ib. 11137. -Viscount Arbuthnot, 3. Mar. 1795, ib. 11133-Buchan, 31. Jan. 1787, ib. 11128. Stewart, 5. Dec. 1823. Stirling, 11. Mar. 1817, F. C.-Houston, 19. May 1795. -Sinclair, 19. Dec. 1823.—Horsburgh, 13. Feb. 1811.— Ferguson, 7. Mar. 1811.—Black, 16. Jan. 1823.—M‘Tavish, 25. Jan. 1825.-M'Indoe, 18. Nov. 1824.-Hannay's Trustees, 31. Jan. 1823.—Armstrong, 16. May 1804, ib. 11140.

VIII.

QUINQUENNIAL PRESCRIPTION, applicable to wholesale bargains, &c. and not falling under the triennial limitation.

The first part of the statute 1669, cap. 9, ordains, That all arreastments to be used hereafter upon decreets, registrate bonds, dispositions, or contracts, not pursued and insisted on within five years after the laying on thereof, shall after that time prescrive: And that all arrestments already used upon the ground aforesaid shall prescrive within five years after the date hereof: And that all arrestments, used or to be used upon dependance of actions, shall likewayes prescrive within five years after sentence is obtained in the saids actions, if the saids arrestments be not pursued or insisted on within that time: And likewayes, his Majesty, with advice foresaid, statutes and ordains, That ministers' sti

pends and multars not pursued for within five years after the same are due: And likewayes mails and duties of tennents, not being pursued within five years after the tennents shall remove from the lands for which the mails and duties are craved, shall prescrive in all time coming; except the saids ministers' stipends, multars, mails and duties shall be offered to be proven to be due and resting owing, by the defenders their oaths, or by a special writ under their hands, acknowledging what is resting owing: And that all bargains concerning moveables or sums of money, probable by witnesses, shall only be probable by writ or oath of party, if the same be not pursued for within five years after the making of the bargain.

Erskine, III. 7, 20. Decisions referred to in the

notes.

IX. TRIENNIAL PRESCRIPTION OF SHOP ACCOUNTS, &c.

The act 1579, cap. 83, declares,

That all actions of debt for house mails, men's ordinaries, servants' fees, merchants' accounts, and other the like debts, that are not founded upon written obligations, be pursued within three years, otherwise the creditor shall have no action, except he either prove by writ or by oath of his party.

DECISIONS.

Ross, 12. Feb. 1680, Mor. 11089.-Lesly, 15. Nov. 1808, F. C.-Wilson, 7. Feb. 1826, S. & D. IV. 427.—Ormiston, 11. Nov. 1709, ib. 11093.—Wilson, 28. July 1680, ib. 11090.-Graham, 26. Feb. 1670, ib. 11086.

Ersk. III. 7, 18,—and IV. 11, 13.

Donaldson, 15. Jan. 1766, ib. 11110.-Bryson, 16. Nov. 1825, S. & D. IV. 180.

There are other two triennial prescriptions, one ap

plicable to actions of spuilzie and ejection, and the other to actions of removing.

66

66

The statute 1579, cap. 81, ordains, "that all ac"tions of spuilzies, ejection, and others of that nature, "be pursued before the ordinary judge within three years after the committing thereof, otherwise the pursuer's alleged hurt never to be heard thereafter : Providing that this act extend not to minors, but to pursue within three years of their perfect age." This statute was subsequently ratified by the act 1581, cap. 119. The principle of this statute is quite consistent with the clause of the act 1669, cap. 9, quoted in Div. V.: that clause refers to the prescription of "ac"tions proceeding upon warnings, spuilzies," &c. and reserves expressly the operation of prior statutes, regulating the warnings or spuilzies.

"that all ac

The statute 1579, cap. 82, declares, "tions of removing be pursued within three years after "the warning, with certification if they fail, the warn"ers shall never be heard thereafter to pursue the "same upon that warning."

Erskine, III. 7. 18.

X. TRIENNIAL PRESCRIPTION, APPLICABLE TO ACTIONS FOR WRONGOUS IMPRISONMENT.

By the act 1701, cap. 6, it is ordained, "That ac"tion and process for wrongous imprisonment shall "prescribe if not pursued within three years after the "last day of the wrongous imprisonment; and process being once raised, the same shall prescribe if not in"sisted in yearly thereafter." See title " See title "Wrongous "Imprisonment."