What diligence sufficient. - Effect of partial interruption.
Johnston v. Kennedy
Date: 15 February 1704 Case No. No 429.
Serving and executing an inhibition against a debtor, is a sufficient interruption of the prescription of a bond, which is the ground of that inhibition.
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Lord Tillicoultry reported Johnston contra Kennedy. Robert Johnston of Straiton pursues Sir Archibald Kennedy of Colzean, for payment of 10,000 merks, contained in a bond granted by his grandfather and others, in anno 1651, to Fergus Macubine, and whereto James Johnston writer to the signet, the pursuer's father, was constituted assignee. Alleged, 1mo, The bond was prescribed, not being pursued for within the 40 years. Answered, There is an inhibition served on the bond in 1669, which does sufficiently interrupt the prescription. Replied, An inhibition is only a prohibitory diligence, that none contract with the debtor during the years wherein the bond does not prescribe; for esto an apprising were led after the inhibition, that hinders indeed the bond from prescribing, yet if no summons be raised on the inhibition, the preserving the bond from prescription, will not save the inhibition; for the old act of King James III. anent prescription, requiring some document to be taken within the 40 years, must be either by a charge of horning, or citation on a summons against the debtor, or payment of annualrent, or such other certioration, as imports the creditor's demanding payment; and therefore the registration of a bond within the years of prescription, though a document, whereby the creditor owns his bond, yet was not found by the Lords a sufficient interruption. Duplied, There could not be a clearer intimation of a creditor's mind to prosecute his debt, than to inhibit his debtor, wherein a copy is given him, which is not in the registration of a bond, and so makes a plain difference betwixt these two cases. The Lords found the serving and executing an inhibition against the debtor was a sufficient interruption of the prescription of the bond, the ground of the inhibition. Then alleged farther, This interruption was prescribed, because it was not renewed within seven years, as is injoined by the act of Parl. 1669. Answered, That act related only to interruptions made by citations in processes, and not to this case, which could not mean that inhibitions should be renewed every seven years, though a summons of reduction ex capite inhibitionis might be raised within seven years. The Lords found this interruption did not fall under the said act 1669. Then Colzean alleged, The debt was paid by Bargeny, who took a blank assignation thereto; and James Johnston being his writer, got the custody of his papers, and that amongst the rest; and that it was lying blank beside the said James, the time of his decease, and is filled up with his name since, and was not in any list or inventory of his debts, nor did he ever crave it, though he demanded payment of lesser sums from Colzean, as appears from his letter produced; and when Girvanmains, one of the cautioners in the bond, his estate was publicly rouped, James Johnston never once appeared to give in his claim, as a creditor. Answered, He needed say no more but produce the bond and assignation now in his hands, which cannot be taken from him by presumptions; and the pursuer was left very young when his father died, and he must not suffer for his tutors' negligence in pursuing this debt. The Lords thought there was ground for suspicion, and therefore resolving to expiscate the case, they allowed a probation before answer, where this assignation was found, and when it was filled up, and what may be found among Bargeny's papers to shew it was retired, and likewise the pursuer tο adduce what evidence he can to astruct and adminiculate the same. As to the foresaid point, that a decreet of registration was not a sufficient interruption, the Lords decided so in the same James Johnston's case, against the Lord Belhaven, 12th January 1672, No 416. p. 11237.; and likewise found a reduction within the quadriennium utile for reducing deeds in minority, did not interrupt the prescription of that privilege of revoking and reducing, unless it was renewed every seven years, in the Earl of Forfar's process against the Marquis of Douglas, in 1700.
Fol. Dic. v. 2. p. 127. Fountainhall, v. 2. p. 223.
