What diligence sufficient. - Effect of partial interruption.
Menzies of Pitfoddels v. Forbes of Tolquhon
Date: 16 February 1699 Case No. No 428.
A process of forthcoming on a sum libelled, in general does not interrupt prescription, quoad a particular bond.
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Menzifs of Pitfoddels pursues Sir Alexander Forbes of Tolquhon, on this ground, Sir Alexander's father owed one Mitchel in Aberdeen, 1000 merks by bond, dated in 1638. Pitfoddels being creditor to this Mitchel, arrests in Tolquhon's hands, and obtains a decreet of forthcoming against him, wherein a term was taken to produce him, and he holden as confessed; and for that sum Sir Alexander is made liable as representing his father on the passive titles. During all this time, Tolquhon's bond to Mitchel was never produced; but now being found, Pitfoddels discovers, though it bore not annualrent, yet he was denounced upon it in 1652; and so, by the act of Parliament 1617, it must bear annualrent from the denunciation, for which he raises a new pursuit, as executor-creditor confirmed to Mitchel. Alleged for Tolquhon, No annualrent can be due; because the bond, horning, and denunciation are all prescribed, and nothing done thereon within the 40 years. Answered, The prescription was interrupted by Pitfoddels arresting 1000 merks due by Tolquhon to Mitchel, and obtaining a decreet of forthcoming; which being suspended, the same was discussed within the 40 years. Replied, In all these decreets of forthcoming, there is neither mention nor production of this bond of 1200 merks by old Tolquhon to Mitchel, but only the sum of 1000 merks arrested in his hands, which might be another sum; and he suffering himself to be holden as confessed thereon, it can never be applied to this bond, unless it had expressly mentioned the same; and that there must be a specific application of the title necessary for interrupting, was found, 11th February 1681, Kennoway contra Crawfurd, No 9. p. 5170.; and the act 28th, 1469, introducing personal prescriptions, requires that a document be taken on the writ within the 40 years, which cannot be alleged in this case; and lawyers are very positive that sums are presumed to be different in such cases; and Menochius de arbitrariis judicum quæstionibus, lib. 2. cas. 213., states many cases, quando summæ eædem vel duplicatæ præsumuntur, and particularly that duæ sententiæ presume summarum deversitatem, &c. Duplied, Prescription is odious; and therefore, where one raises a pursuit, intelligitur omnes causes et actiones cum eorum mediis in judicium deduxisse quoad interruptionem temporis, 1. 3. C. De annali except. The Lords found the bond prescribed, seeing no document had been taken on it within the 40 years; and that the decreets of forthcoming on a sum libelled in general did not interrupt quoad this bond, though this seems to contradict Justinian's decision in the foresaid 1. 3. But it agrees with the tenor of our old act of Parliament, and the Lords would not take upon them in this case to extend it.
Fol. Dic. v. 2. p. 127. Fountainhall, v. 2. p. 44.
