Scottish Court of Session Decisions

Subject_1 PRESCRIPTION.
Subject_2 DIVISION XV.

Interruption of the Negative Prescription.
Subject_3 SECT. I.

What diligence sufficient. - Effect of partial interruption.

Isobel Scott, Relict of Andrew Angus, Town-Clerk, in Selkirk,
v.
Adam Bryden, Tenant in Henderland

Date: 2 July 1706
Case No. No 431.

Prescription of arrestment, interrupted by a decreet in absence pronounced by a commissary beyond his instructions, and afterwards turned into a libel.

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James Menzies writer to the signet, being debtor by bond to Isobel Scott in the sum of L. 370 Scots, she raised horning thereon, in the year 1690, and arrested in the hands of Adam Bryden, as debtor to Mr Menzies, and obtained decreet of furthcoming in the same year, before the commissary of Peebles; which decreet being suspended, and at discussing of the suspension turned into a libel; it was then alleged for the defender, That the pursuer's arrestment was prescribed by the act 9th Parl. 2d Cha. Π. and so no decreet of furthcoming could proceed upon it.

The Lords found, that prescription was interrupted by the commissaries decreet; albeit it was alleged for the defender, That the commissaries decreet was found null; and a null decreet could no more interrupt prescription, than a null execution.

Fol. Dic. v. 2. p. 128. Forbes, p. 116. *** Fountainhall reports this case:

1706. July 4.—Isobel Scott, relict of Andrew Angus, town-clerk of Sel-kirk, being creditor by bond to James Menzies, writer to the signet, in L. 300 Scots, arrests, in anno 1690, with Adam Bryden tenant in Henderland, the like sum owing by him to Menzies; and, in the 1692, recovers a decreet of forthcoming in absence before the commissary of Peebles: This lying over till 1699, is then suspended, and the decreet turned to a libel; and then it was alleged for Bryden, The decreet being now out of doors, the arrestment laid on in 1690, was prescribed by the 9th act of Parliament 1669, not being pursued for, nor insisted on for the space of five years after its date. Answered, This ought to be repelled, for the decreet was within two years after the date of the arrestment, though the decreet was turned into a libel, because obtained in absence, yet it was a standing decreet till 1699, and so was a sufficient interruption of the prescription. Answered, This decreet being null, as being given a non suo judice, viz. the commissaries, above their instructions, and against James Menzies, who was both a member of the College of Justice, and dwelt not within that jurisdiction, it can never be a decreet, and so no interruption at all; and the like was found betwixt Scott of Bowhill, and Grieve of Pinnacle. Replied, The commissary was most competent to the principal party cited, who dwelt within his bounds, and Menzies was only cited pro interesse, and summoned by letters of supplement, which was sufficient; and any interpellation was sufficient to interrupt prescription, even defective and null executions, and for the practick alleged, it was neither produced, nor did it meet this case. The Lords repelled the defence, and found the arrestment not prescribed, but sufficiently interrupted by the decreet, though afterwards turned into a libel.

Fountainhall, v. 2. p. 340.

*** A similar decision was pronounced in a case respecting the vicennial prescription of holograph writs, 21st March 1707, Corbet against Hamilton, No 106. p. 2642.; voce Compensation.—Retention.