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Poor Katharine Graham, Relict of John Murray, sometime Gunner in the Castle of Edinburgh, v The Earl of Leven and Major Colt. [1709] Mor 11093 (14 July 1709)
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Triennial Prescription of Accounts, Act 1579. c. 83.
Poor Katharine Graham, Relict of John Murray, sometime Gunner in the Castle of Edinburgh, v. The Earl of Leven and Major Colt
Date: 14 July 1709 Case No. No 297.
A soldier's arrears found not to fall under the three years prescription.
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In the action at the instance of Katharine Graham, as executrix to her husband, against the Earl of Leven, governor of the Castle of Edinburgh, and Major Colt, paymaster to the garrison, for payment of L. 41: 15: 5d. Sterling resting of her husband's pay as serjeant for several months preceding September 1698, at Is. 8d. per diem, conform to the establishment; the pursuer offered to prove by the muster-roll, or by witnesses, that her husband served so long as serjeant, which she contended was sufficient to found her claim, unless the defenders prove payment.
Alleged for the defenders; The action is prescribed quoad modum probandi, not being commenced within three years, conform to the act 83d, Parl. 6. James VI. concerning the prescription of servants fees and the like debts, not founded on writ; for a soldier's pay is a debt like unto a servant's fee, both being alimentary, and neither using to be founded on, or discharged by writ, or presumed to lie long over unpaid; so, in a case betwixt Captain Dundas and Lieutenant-General Holburn, the Captain was presumed to have got his share of levy-money, since he did not question it de recenti.
Answered for the pursuer; There is no parity betwixt an ordinary servant's fee and arrears of pay due to the Queen's servants or soldiers; because no Lieutenant-General or Colonel can be pursued for these till he receive them from the government, which is sometimes eight or nine, or more years, as the government thinks fit to delay the same. So a soldier's arrears were found not to fall under the three years prescription, in the case of Captain Slezer and Robert Forrest anno 1701, and in that betwixt General Ramsay and Serjeant Heriot in the year 1705.—See Appendix.
The Lords found, That the three years prescription takes not place in the case of a soldier's arrears, which is not like an ordinary servant's fee.
