Of the Act 28. Parl. 5. Jas. III. 1469, which enacts, that “Obligations” not followed out within 40 Years shall prescribe.
Lindsays v. L Balgony.
Date: 19 June 1627 Case No. No 28.
Found, that the act 1469 extends to testaments.
Click here to view a pdf copy of this documet : PDF Copy
In an action betwixt Lindsays and L. Balgony, for payment to them as executors-datives to umquhile David Lindsay of Balgony their father, of the goods and gear contained in the testament of umquhile Lillias Oliphant, grand-mother to the defender, and who was convened as nephew and heir by progress to her; the Lords found, That the testament which was the title and ground of this pursuit, could not produce this action, seeing the same was dated and confirmed in the year 1585; and so 40 years were expired before the intenting of this pursuit, and consequently, that the same came under the act of prescription in the 5th and 7th Parliaments James III.; which was found, albeit these acts mentions only prescription of obligations, and this title was a testament, whereto the pursuer alleged these acts could not extend; which the Lords repelled, and sustained the prescription of the testament, and so much the rather, because there was no writ extant to prove the debt contained in the testament, and intromission therewith after so long time.
Alt. —.Alt Aiton.Clerk, Scot.
Fol. Dic. v. 2. p. 98. Durie, p. 297.
