Of the Act 28. Parl. 5. Jas. III. 1469, which enacts, that “Obligations” not followed out within 40 Years shall prescribe.
Hamilton v. Lo Sinclair.
Date: 26 February 1622 Case No. No 27.
Found, that a mutual contract was not liable to the negative prescription.
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In an action by Sir George Hamilton against the Lo. Sinclair for payment of L. 100 yearly of annualrent, conditioned and obliged to be paid to the Lady Sinclair by the umquhile Lo. Sinclair her husband, conform to the contract made thereupon; for the which the said Sir George pursued as assignee to the Lady; it being alleged by the defender, That the action upon that contract was prescribed, conform to the 28th act of the 5th Parl. King James III. seeing the same appoints all obligations which are not pursued within 40 years after the date thereof, to prescribe; and this contract libelled, not being urged within 40 years after the date thereof, behoved to prescribe; the Lords repelled this allegeance, and found, That the contract libelled being a contract of marriage, whereupon marriage followed, prescribed not, nor came under that act.
Act. ———.Alt. Aiton & Nairn.Clerk, Hay.
Fol. Dic. v. 2. p. 98. Durie, p. 18.*** Haddington reports this case:
The Mistress of Sinclair's action sustained, upon her contract of marriage, to obtain her infeftment of anannualrent of L. 100, albeit the action was not intented within 40 years after the date of the contract; because she could not pursue during her husband's life, and intented her action within less not 40 years after his decease.
