Triennial Prescription of Accounts, Act 1579. c. 83.
James Forrest v. The Relict and Children of James Carstairs
Date: 23 June 1715 Case No. No 302.
A person having been alimented in a boarding-house; in a process against his representatives for the same, the Lords restricted the libel to three years preceding the citation, upon the presumption, that the pursuer would not lie longer out of his money, and that former scores were cleared.
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James Forrest pursues the Relict and Children of James Carstairs, as representing him, who represented Julian Finlay his mother; which Julian did represent Mr Thomas Finlay, late schoolmaster in Drumeldrie, libelling, that the said Mr Thomas was several years boarded and entertained in the pursuer's house, where he died; and concluding for payment of 200 merks yearly, during his abode there.
The defenders, denying the passive titles, alleged; That the defunct being major, and no paction libelled, there was nothing due.
It was answered; That the presumption of alimenting gratis can take no place in this case; because the pursuer did keep a public-house near the school, where several of the scholars were boarded, and the defunct, the school-master, had his entertainment there also, being a convenient place both for him and his scholars, that they should be near the school and boarded together. And this is my Lord Stair's opinion, that the presumption of entertaining gratis ceases, where those who entertain are in use to furnish provisions for money.
“Which the Lords sustained.”
It was further alleged; That prescription would take place for any entertainment above three years preceding the citation, conform to the 83d act, Parl. 6th, James VI. providing that men's ordinaries not founded on a written obligation be pursued within three years.
It was answered; That act of Parliament takes no place in aliments, which are often resting for many years; but the act concerns only eating-houses, or such public-houses where persons are in use to pay daily, or where they have not constant residence.
It was replied; That regularly such as are entertained in families for a constant course of years, being majors, are presumed to be gratuitously entertained, unless there be a paction. But the Lords, in this case, having found the presumption more strong for the pursuer that he kept a public-house, and was in use to entertain boarders for money; and the same presumption will bring this case under the said act of Parliament; for it cannot be presumed, that the pursuer, who keeps a public-house, would lie out of his payment without a written security, or a pursuit, for more than three years;
“Which the Lords also sustained.”
The pursuer further alleged; That he ought not to be obliged to prove the passive titles, seeing the defender has proponed a peremptory defence of prescription.
It was answered; The defenders did, and might allege prescription, denying the passive titles; because their allegeance of prescription was instantly verified, requiring no probation. And it would not tend to shorten, but to lengthen processes, if they were not allowed to allege upon any exception requiring no probation before litiscontestation; because an allegeance of prescription, requiring no probation, would be competent even after probation, at the conclusion of the cause; and if the pursuer should in that case reply upon interruption, there would be a necessity for a new probation; whereas, if the pursuer should now reply upon interruption, one act and probation would serve for all.
It was replied; if the defender do not represent, the pursuer ought not to be put to any further trouble of a process or probation; nor is the defender concerned to object prescription, or any other defence or objection; and the Lords, both of old and late, have been in use to find so; and especially 15th December 1671, Hamilton of Kinkell against Aiton of Kinaldie, voce Process; and 11th February 1713, Margaret Lundie and her Husband contra the Lord Sinclair, Ibidem.
“The Lords found the defenders could not be allowed to propone prescription denying the passive titles. But, in this case, it was not pleaded for the defenders, that the process being against them, as representing their father, who represented his mother, and she again the schoolmaster, that some of these intermediate predecessors were libelled to be executors; and that it might be competent to the defenders to allege the testament was exhausted; and in that case it might be more doubtful, whether prescription might not be also alleged, seeing the representation of the intermediate predecessors was not libelled to be universal, but only secundum vires inventarii.
Fol. Dic. v. 2. p. 121. Dalrymple, No 147. p. 202.
*** Bruce's report of this case is No 62. p. 9713, voce Passive Title.
