Robert Henderson of Cluigh-Heads, Esq. v. Robert Ramsay and Francis Maxwell, Writers in Dumfries, Assignees & Arresting Creditors of deceased Arch. Malcolm [1806] UKHL 5_Paton_155

UKHL
Robert Henderson of Cluigh-Heads, Esq. v. Robert Ramsay and Francis Maxwell, Writers in Dumfries, Assignees & Arresting Creditors of deceased Arch. Malcolm
[1806] UKHL 5_Paton_155 · 1766-07-29
Circumstances in which the cautioner in a bond was held entitled to relief against one, who came under an obligation to relieve him after the expiry of the period of the septennial limitation; and this, though the obligation was granted in ignorance of the fact and law, that the bond was gone as a valid bond against the cautioner, in respect of the septennial limitation.Action of relief was raised in the following circumstances: A bond was granted by Alexander Orr, W.S., to Mrs. Murray of Murraythwaite for £1333, being her share of the deceased Mr. Dalrymple's succession, to which she succeeded as one of three heir-portioners. The bond was dated 26th and 29th July 1766, and was made payable at the term of Martinmas next to come, that is, 11th November 1766. It bore to be granted by Alexander Orr as principal, and “William Hay of Craufurdston, W.S., and Archibald Malcolm of Auldgirth, Writer in Dumfries, as cautioners, sureties, and full debtors with, and for me.” And there was a clause of relief in this bond, obliging Alexander Orr to free and relieve his said cautioners.Oct. 22, 1773.This cautionary obligation was, under the statute 1695, c. 5 (septennial limitation), at an end upon the 29th July 1773. Under the impression, however, that it continued in force until the term of Martinmas, 11th Nov. 1773, the cautioners, Hay and Malcolm, entered into a new obligation in the month of October of this year, to the effect that the bond should continue to have the same force after the term of Martinmas as it had before it . The obligation narrates the bond, and sets forth, “Therefore, to prevent any such diligence being used for the purpose aforesaid, we do hereby declare that the said bond shall continue in force, and be effectual against us and our aforesaid, as well after the term of Martinmas next, as before the same, aye and until the sums contained in, and due by the bond, are paid.”Nov. 13, 1773.Thereafter Malcolm, one of the cautioners, applied to Mr. Orr to be relieved of his cautionary, whereupon the father of the appellant, Mr. Henderson, of this date, granted a letter. promising and engaging “to free and relieve you of the

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This letter did not refer or narrate the above obligation granted by the cautioners of 22d Oct. 1773, but only the bond itself.1779.It seems that Mr. Malcolm, who was then relieved of his obligation, had always acted in the capacity of confidential agent and legal adviser. After her death, Mrs. Murray's son raised, in 1779, action against Malcolm, and the heir of Mr. Hay, who was dead, for payment of this bond, in which, having obtained decree therein, the amount of the bond was paid by Malcolm. No defence of prescription was stated by Malcolm to this action. This action was intimated under protest by Malcolm to Mr. Henderson; and action of relief was at same time raised against him before the Court of Session, in which various procedure took place, and where some claims of compensation were stated.This action was allowed to fall asleep, and was revived in 1784; and afterwards dropped. Another action was raised by Malcolm against Orr's representatives, and the representatives of Hay, the other cautioner, having in view to ascertain his counter claims against Orr's estate; but, as against Orr's estate, no decree followed.Mr. Orr, the original debtor, was dead and bankrupt, Mr. Hay was also dead and bankrupt; Mr. Malcolm, the other cautioner, died, leaving his affairs in great confusion. The action of relief raised by him, and allowed to fall asleep, was, after his death, revived by the respondents, Messrs. Ramsay and Maxwell, his sons in law.July 11, 1798.The Lord Ordinary (Swinton) pronounced this interlocutor, after discussion on the merits:—
“In respect the cautionary obligation of Messrs. Hay and Malcolm, contained in their original bond, along with Mr. Orr as principal, expired in July 1773, and that the renewal of cautionary granted by Hay and Malcolm in October 1773, proceeds on the mistake that the septennial prescription was not then expired, and therefore was not binding on them; finds Mr. Henderson's missive of relief to Mr. Malcolm in Nov. 1773, could not bind Mr. Henderson to make any payment to Mr. Malcolm, who was not himself bound effectually; therefore sustains Mr. Henderson's defence, and assoilzies him from the action.”

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The respondents then raised their action of repetition against Mr. Murray, who had, in the meantime, received payment of the bond as above mentioned. In this action of repetition, which went before a different Lord Ordinary, (Bannatyne), it was stated in defence, 1. That Mr. Malcolm was barred from pleading prescription under the act 1695, because he was the confidential friend and legal adviser of Mrs. Murray, upon whom she relied in that business, and he was. not therefore entitled to avail himself of an omission which he was bound to inform her of. 2. Mr. Murray stated a variety of transactions, which took place after he made this claim against Mr. Malcolm, which he maintained were sufficient to bar an action of repetition, even if otherwise well founded.May 27, 1802.May 27, and June 1, 1802.Informations were ordered to the Court on both actions.In the action of repetition, the Court sustained Mr. Murray's defence against repetition brought by the respondents, and assoilzied him from the conclusions of the action. In the action of relief, the Court, of this date, altered the interlocutor of the Lord Ordinary, 11th July 1798, and found “the defender, Robert Henderson, liable to relieve the pursuers of the debt libelled, originally due by Alexander Orr to Mr. Murray, for which Archibald Malcolm was a cautioner by the original bond, and renewed obligation libelled, in consequence of which he was found liable for, and obliged to pay the sums in question.” On reclaiming petition the Court adhered.Against the interlocutors of 27th May and 1st June 1802, the present appeal was brought to the House of Lords.Pleaded for the Appellant .—The engagement undertaken by the appellant was not that come under by Mr. Malcolm and Mr. Hay, by their declaration executed in October 1773. This engagement was not varied by his letter of the 17th November 1773, for though that letter is affixed to a copy of the declaration executed by Mr. Malcolm and Mr. Hay, yet the appellant thereby promises only to relieve Mr. “Malcolm, in terms of his missive to him on the subject matter thereof on the 13th current.” The appellant's letter of 13th Nov. 1773 refers merely to the bond of cautionary obligation in which the appellant engaged to free and relieve Mr. Malcolm. This letter, therefore, of the 13th Nov. is the extent and measure of the appellant's obligation, and the undertaking is to relieve Mr. Malcolm of his cautionary obligation on the bond; but the bond being at that moment gone as a bond against the cautioners, by

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Pleaded for the Respondents .—1. The payment by the respondents' author Malcolm, in consequence of his cautionary obligation for Orr, the principal debtor, was a necessary consequence of their engagement, and of the decrees and documents which followed in relation to it; for, beyond all doubt, one unavoidable consequence of the renewal of the obligation was, that the creditor might prosecute for the bond, and might try the question of its validity in a court of law. And the decision in the question of repetition at the respondents' instance against Murray has shown that the respondents did their utmost, both for themselves and for the appellant, to set aside the cautionary obligation altogether, and to obtain indemnity for the loss incurred by that engagement. How can it avail the appellant to plead that the interlocutors of the Court of Session, in a question between the respondents and Murray, have been erroneous;

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After hearing counsel, it was

Ordered and adjudged that the interlocutors complained of be, and the same are hereby affirmed.Counsel: For Appellants, Sam. Romilly, John A. Murray. For Respondents, Wm. Adam, Robert Corbet.Note .—Unreported in the Court of Session.