What diligence sufficient. - Effect of partial interruption.
M'Intosh v. Frazer
Date: 9 January 1675 Case No. No 418.
Interruption of prescription sustained by citation without any judicial act thereon, see Butler against Gray No 363. p. 11183.
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Alexander M'Intosh having pursued the Laird of Strichen for payment of a sum of money, he proponed two defences, prescription and payment.— Against prescription, the pursuer replied upon interruption, whereupon litiscontestation being made, and the cause being called to be advised, the pursuer produced a summons executed for instructing the interruption, and the defender produced a discharge of the sum, granted by M'lntosh his curators. It was objected against the interruption, That the citation was not sufficient, unless it had been called in judicio, otherwise it might be easy for messengers or others, by forging citations, to make interruptions, which if called in judgment, and so made known to the party, they would have improved. It was alleged against the discharge, That it could not prove payment to the creditor, because it is not subscribed by him, neither could his curators lift the sum, or discharge the same, without their minor; for though tutors act for their pupils, curators act but with their minors. It was answered, That curatores dantur rebus, and so by their office they may lift the minor's rents and sums, and they are ordinarly their factors, and in a matter so ancient 40 years since, it were hard to put them to produce factories in writ; for if the matter had been recent, it would have been a good allegeance that the curators were factors, or at least holden and reputed factors, which must be presumed after so long a time, especially seeing the discharge was registered while the minor lived, and if need be, it is offered to be proved, that the minor had discharged the curators of all their intromissions. It was replied, That curators, by their office, are not factors, even as to the lifting of rents, albeit they may hinder the minor to uplift without their consent, and necessitate him to name factors by their consent, much less as to lifting principal sums, as to which a double presumption is of no moment, for holden and reputed factors is but a presumption, and by the length of time to presume that they were then holden and reputed, is of no importance. And as to the minor's discharge to the curators, 1mo, It is not relevant, except in the account this sum had been deducted; for a general discharge will not import the minor knew that his creditors had lifted this sum, which warrantably they could not, nor is it presumed that a minor knew what was registered in that shire.
The Lords found the interruption sufficiently instructed by the citation, without production in judgment, and that the discharge of the curators was not sufficient without the minor's subscription, or that a factory were proved; and found, that a general discharge would not extend to this sum, especially seeing the minor's knowledge of his curators' intromission could not now be instructed by his oath, he being dead. See Tutor and Pupil.
Fol. Dic. v. 2. p. 127. Stair, v. 2. p. 303.*** Dalrymple reports this case:
M'Intosh pursued Frazer of Strichen for payment of a sum due upon bond, in which pursuit two defences being proponed, viz. prescription and payment, and a reply to the first, viz. interruption by a pursuit; and litiscontestation being made upon the defence of payment and the said reply; it was alleged, when the cause was to be advised contra producta, viz. That the summons and execution thereupon produced, for proving interruption, did not prove the same, in respect the summons was never called, nor any document taken in judgment thereupon. And as to the discharge produced, it was alleged, That it was granted by the persons therein mentioned as curators to the pursuer, and was not subscribed by the pursuer himself, as it ought to have been, there being a great difference betwixt tutors and curators, in respect tutors must act for the minor, and are authors as to all deeds done by them, but curators do only concur, and ought to advise and consent to the deeds of their minor, which otherwise are not valid.
The Lords did find the discharge did not prove, and it could not be obtruded to the pursuer, who had not subscribed the same; and did also find the summons and execution did sufficiently interrupt. Concluded cause.
Act. Falconer.Alt. Seaton.Clerk, Monro.
Dirleton, No 216. p. 100.
