Acts of the Heir proceeding from his Connection with the Predecessor.
James Forret v. The Representatives of James Carstairs
Date: 23 June 1715 Case No. No 62.
The proponing the peremptory defence of prescription found to infer acknowledgment of the passive titles.
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In a process of aliment at the instance of Forret against the Children of Bailie Carstairs, as representing Mr Thomas Finlay, schoolmaster at Drumeldrie whom the pursuer, who kept a public boarding-house, had entertained several years; these three points coming to be discussed, viz. 1mo, How far aliment is due for a major without paction? 2do, From what time the three years prescription of such processes does commence? 3tio, Whether the proponing prescription does infer acknowledgment of the passive titles?
And it was, as to the first of these, answered for the defenders, That it is an uncontroverted principle, that no action for alimenting a major can be intented, except upon paction; seeing it is presumed to be done out of friendship, or some other respect; otherwise it is presumed that he paid for his entertainment at the time.
Replied for the pursuer; That there is an exception set down immediately after that rule by my Lord Stair, Lib. 1. Tit. 8. viz. “Unless it be in such houses where they usually aliment for money;” and that because in this case, the weightier presumption overbalanceth the weaker. And this exception is founded on an express act of Parliament, James VI. Parl. 6. cap. 83.; for there mens ordinaries, not founded upon writ, are to be pursued for within three years, otherwise no probation allowed, except by oath of party; ergo a contrario sensu, where a party can neither prove by writ nor oath of party, mens ordinaries can be pursued within three years.
Duplied for the defenders, That though mens ordinaries may be pursued within three years, without founding either upon writ, or offering to prove by oath of party; yet still it remains necessary that the pursuer found on a paction, which in that case he may prove by witnesses. Mens ordinaries, in the act of Parliament, signifies plainly their entertainment, and is not confined simply to that sense we generally take the word in, when we say, “Such a man keeps an ordinary;” and therefore, if the pursuer's sense of the law were taken, any person, though neither cook nor vintner, might pursue those to whom they had given meat and drink within three years, as well as cooks and vintners, which would entirely evacuate the rule anent aliment due only ex pacto.
As to the second point, answered for the defenders, That the pursuit can go no further than three years, immediately preceding the citation; because, in the act of Parliament, anent the three years prescription, mens ordinaries are expressly mentioned. And in the other prescriptions of that same nature though the obligations continued for more than three years, yet the Lords have always restricted the pursuit to three years preceding the commencement of the process, as in the case of servants fees, 12th February 1680, Ross contra Master of Salton, voce Prescription; and the ratio decidendi given by the Lord Stair is, That it is to be presumed that servants fees being for their necessary provision, must be frequently paid; which reason, in the present case, holds much stronger.
Replied for the pursuer, That the specialty here is, that the present process is not against the person himself, but his Representatives; and therefore the interval from his decease to the time of raising of the process, cannot be reckoned any part of the three years; but in this case, the three years which the law presumes may be owing, or rather the time at which he ceased to be alimented; for the process could not well commence sooner.
As to the third point, answered for the defenders, That though proponing peremptory defences generally exempts the pursuer from proving the passive titles, yet where either dilatory defences are proponed, or objections against the relevancy of the libel, here there is no right peculiar to the defunct assumed, (as in the case of proponing peremptors) it being proper for any man to say, that either he is not legally cited, or not before a proper judge; or that the facts libelled upon do not infer the conclusion. And of this last sort is the present defence, viz. that the defunct's having barely dieted with the pursuer, did not infer an obligation upon him to make payment, and that necessarily the same continued yet due, unless the pursuer libelled a positive paction, and that the samen was yet resting owing; for this is properly not so much a defence, as an objection against the relevancy of the libel.
Replied for the pursuer, That as the proponing prescription is undoubtedly a peremptory defence, so there is no principle of our law better established than this, that such a defence cannot be proponed, without acknowledging the passive titles; for how can a defender propone a defence competent to his predecessor, without acknowledging that he represents him?
The Lords repelled the defence, That there was no paction; and found an aliment due three years before the citation: and found the defender cannot propone prescription, without acknowledging the passive titles.
Act. Graham.Alt. Jo. Falconer.Clerk, Gibson.
Bruce, v. 1. No 106 . p. 131.
