What diligence sufficient. - Effect of partial interruption.
James Johnston v. Lord Belhaven
Date: 11 January 1672 Case No. No 416.
Registration alone does not interrupt prescription.
Click here to view a pdf copy of this documet : PDF Copy
James Johnston, as assignee to a bond of 500 merks granted to a merchant, wherein the Lord Belhaven's father was cautioner, did pursue the Lord Belhaven for payment. It was alleged for the defender, That the bond was prescribed, being dated in anno 1627, and no pursuit intented thereupon until 40 years thereafter. It was answered, That the bond was registered in anno 1656, which was sufficient to interrupt prescription, as was found in a practique, anno 1629, Morris against Johnston, No 405. p. 11228. As likewise, by act of Parliament, King James III. where a creditor hath followed his debtor, and hath taken documents thereupon, it interrupts prescription, which is odious by all law. It was duplied, That the practique does not meet this case; for the reason thereof was, that there were letters raised and executed upon the registered bond; and for the act of Parliament, it requires, that a party following the debtor should take documents against him upon the seeking of payment, otherwise his bond prescribes; and accordingly, the Lords, by a practique, anno 1631, Earl of Loudon against the Laird of Caprington, No 267. p. 11070. did find, That the bond prescribed, unless that there had been either a charge or a citation executed within 40 years after the date thereof.
The Lords did find, That the registration of a bond, upon consent of parties, whereupon no execution followed, albeit it be a decreet of the Lords, yet it is not sufficient to interrupt prescription; but that either a charge, or a citation against the party, ought to be made, to make known the creditor's intention to seek payment, which only could be interpreted to be those documents meant by the act of Parliament foresaid, and not decreet without citation of party; and, therefore, they assoilzied the Lord Belhaven, and found that the bond was prescribed.
Fol. Dic. v. 2. p. 127. Gosford, MS. No 439. p. 227.*** Stair reports this case:
January 12.—James Johnston pursues the Lord Belhaven, as heir to his father, for payment of a bond, dated 28th June 1627, who alleged, Absolvitor, because the bond is prescribed. The pursuer answered, That prescription is interrupted, because the bond in question is registered within the 40 years, by virtue of the clause of registration, which is a decreet of consent, and alleges the like was found the 21st of July 1629, Morris against Johnston, No 405. p. 11228.; and the 27th November 1630, Lauder contra Colmslie, No 1. p. 10655.; and that it is most just, prescriptions being odious, and founded upon the presumed dereliction or passing from the right prescribed, so that any act showing the contrary is sufficient; likeas, the old act of Parliament anent the prescription of bonds, bears, that if the creditor within 40 years take no document upon the writ, it prescribes; and here is a clear document, viz. a decreet of registration. It was answered, That the ground of prescription is not presumed dereliction but is, ne dominia rerum sint incerta; and, therefore, is introduced in pænam negligentium, and in favour of those who have rights, which, if by any act they did, or ought to know, they were quarrelled, they might remove that pretence; but a putting of a writ in the register, not being a register appointed for publication, as that of sasines and reversions, but a register for execution of sentences, no party was obliged to know the same; and if it were so letten lie over till all means of improbation should cease, it were of great detriment; neither do the practiques adduced at all quadrate; for, in the first case, there was not only decreet of registration, but executed horning; and, in the second case, a registered contract, whereof both the date and registration were 40 years before any action was found prescribed.
The Lords found the registration of the bond without any action or charge before or after, was no interruption.
