What diligence sufficient. - Effect of partial interruption.
Dr Wright v. Richard Wright of Kersie
Date: 11 December 1717 Case No. No 436.
Registration of a bond, and letters of homing there on, with a suspension by the debtor, were not, found to interrupt the prescription of the bond, unless a charge had been given.
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Doctor Wright pursues Richard Wright for payment of a sum contained in his father's holograph bond, dated in February 1685.
The defender having alleged prescription, it was answered; The prescription was interrupted by registrating the bond, and raising horning upon it, and whereof there was a suspension raised in February 1688.
It was answered; None of these documents were sufficient to interrupt, seeing there was no charge of horning given; for the registrating of a bond, or raising letters of horning, were never reckoned deeds of interruption, unless executed by the charge; 2do, Neither can a suspension be reckoned an interruption; because raising of a suspension is a deed of the debtor, not of the creditor; whereas all interruptions are only by the deed of the creditor. The 28th act, Parl. 5. James III. provides, that all obligations prescribed, if the party to whom they are made follow not the same within 40 years, and take document thereupon; and the 9th act, Parl. 1669, statutes, that holograph bonds, not being pursued for within 20 years, shall prescribe in all time coming.
It was replied; That a charge was given in this case, is sufficiently evident; because there is a note upon the back of the horning by the messenger, bearing that an execution should be made out, bearing date the next day after the letters of horning; and the suspension narrates a charge to have been given; which documents do sufficiently presume that a charge was really given.
It was duplied; The messenger's note mentions not the witnesses, nor is it signed; 2do, The common style of suspensions bears a charge to be given, tho really there be none.
“The Lords did not find that the suspension was a sufficient interruption; but found that the documents produced were sufficient to presume that a charge was given upon the letters of horning; and therefore repelled the prescription.”
Thereafter the defender in a reclaiming bill represented, that the note on the back of the letters of horning was not writ with the messenger's hands, and thereby could make no faith, nor afford any document that a charge was really given, whereby there remained only the registration of the bond, letters of horning and arrestment, which, without further document that a charge was given, could not interrupt.
“The Lords found the letters of horning and suspension were not sufficient to interrupt, without a lawful charge given.”
Fol. Dic. v. 2. p. 127. Dalrymple, No 177. p. 243.
