[1696] Mor 11257
Subject_1 PRESCRIPTION.
Subject_2 DIVISION XV. Interruption of the Negative Prescription.
Subject_3 SECT. I. What diligence sufficient. - Effect of partial interruption.
Date: Mr John Guthrie
v.
Nisbet of Dirleton
6 June 1696
Case No.No 427.
Held to be sufficient interruption of prescription, that the factor for the tutors of one of the obligants in a bond had paid· annualrent.
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Mr John Guthrie pursues Nisbet of Dirleton for 1000 merks, contained in a bond granted by the deceased Sir John Nisbet and Craigintinny, both whom he represents. Alleged, 1mo, The bond being dated in the year 1650, was prescribed. Answered, Annualrents had been paid within the 40 years, which was a sufficient interruption of the prescription. Replied, Any annualrents paid were only by Sir Patrick Nisbet, as factor for Craigintinny's tutors, when he was minor, which cannot prejudge him, unless it be instructed that he either had a special warrant to pay it, or else that it was allowed in his chamberlain accounts; otherwise, factors might constitute debts on their constituents without their knowledge; and though apocha trium annorum be a presumptive discharge of all precedings, yet three consecutive discharges given by a chamberlain ought not to have that privilege. Yet see Stair Instit. Lib. 1. Tit. 18. in the case of the Laird of Wedderburn against Nisbet; No 7. p. 7181. and that the factor's discharges operate against the constituent for years within his commission.—The Lords, considering this was no constitution of a debt, but the preserving it against an odious prescription, thought the factor's paying the annualrent, [interrupted] (especially being a tract of several years payment,) seeing the act of Parliament James III. requires only the taking a document to stop
prescription, and that talis qualis insinuatio is sufficient to interrupt. The second defence was, That Sir Patrick Nisbet having paid this debt in anno 1664, he took an assignation thereto from Cockburnspath, the creditor, in Yeaman of Dryburgh his brother-in-law's name, and caused him in 1670 give a blank translation, wherein now Mr. John Guthrie's name is filled up; and that it could not be originally there, is evident from this, that he is designed “Writer to the Signet,” to which office he was not admitted for more than ten years after; and, therefore, they offered to prove by his oath, that he got this translation from Sir Patrick Nisbet; and if he acknowledged that, then they offered to prove, that Sir Patrick was factor for Craigintinny in 1664, when the debt was paid; and so it must be presumed it was out of the minor's own estate.— Answered; This was no way relevant to take away Mr John Guthrie's right, who had it for an onerous cause; and esto his name had been lately filled up, yet he was not obliged to know that Sir Patrick had been the debtor's factor; and though a tutor, ante redditas rationes, cannot validly assign, yet his factor is not so incapacitated nor bound up; and, therefore, he would not suffer Sir Patrick to depone, but it could only be loosed scripto vel juramento of the pursuer. Some of the Lords inclined to cause examine Mr John Guthrie before answer, from whom he received the said translation, for what cause, and at what time his name was filled up therein; and on his condescending, then to see how far Sir Patrick's intromission, as factor, would extinguish this bond, as presumed to be with the pupil's means. See Stair, B. 1. T. 6.; and Durie, 18th July 1635, Edmiston, voce Tutor and Pupil. But the plurality considered, that though, in some cases, where trust or fraud appear, they used such expiscations ad rimandam veritatem, yet there being no relevant allegeance made which would meet Sir Patrick, esto the right of debt were in his person; therefore, they repelled the defence in terminis, as it was proponed; and only found it relevant to be proved by the pursuer's oath, that he either had it in trust for Sir Patrick's behoof, or without an onerous cause; which being, then to try if they would prove scripto vel juramento of Sir Patrick, that he paid this out of the minor's estate, and by his intromission therewith when he was his factor.
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