Where resting owing is referred, are payment, or satisfaction, or payment to a third party, at the pursuer's desire, intrinsic?
Lady Forrester v. Lord Elphingston
Date: 13 November 1742 Case No. No 23.
Qualities adjected to a defender's oath, whether intrinsic or extrinsic?
Click here to view a pdf copy of this documet : PDF Copy
Lady Forrester, as having right to a bill due by Lord Elphingston to the deceased Lord Forrester, dated anno 1716, brought a process for payment. The defence was the vicennial prescription. Whereupon the Lords ordained both parties to give in memorials touching the state of the law of foreign mercantile nations, anent the endurance of bills at the time of the act 1681.
The substance of the argument for the pursuer was, that, by the law of Scotland, great care is taken, in every case, to regulate the course of prescription; and, as there was no statute with respect to the endurance of bills, it ought to be the same as in other contracts and bonds, i. e. for 40 years; that it was observed by Sir George Mackenzie, in his observations on the act 1669, the parliament expressly refused to limit the endurance thereof, but left the same to the common law.
That what had given occasion to doubt, was the temporary prescription with respect to the negotiation of bills, in order for recourse, and the summary diligence allowed by act of parliament, when duly protested within six months.
But these have nothing to do with a bill, when it is completed by acceptance; seeing, by the acceptance, there is an obligation completed in suo genere betwixt the holder and the accepter, the endurance whereof ought to afford action and pursuit for recovery of the money, as long as other contracts. See 21st article of the edict Lewis XIV. 1681, and the Sieur Savary, lib. 3. cap. 6. p. 162. June 1728, Hedderwick, See Appendix.
For the defender it was observed; That it was solely owing to the privilege of commerce, that bills of exchange are sustained as probative, and because of the speedy dispatch the business of merchants requires, whereby Bills use not to be kept up for any time; and if they were so kept up, they would not be probative (as Lord Stair observes); and because it is the general custom of merchants, which particular statutes cannot remeid: That holograph writs are the least capable of forgery of any, and yet these prescribe in 20 years; consequently there was much greater reason for limiting the endurance of bills, as these are seldom holograph of the debtor or accepter: That people's manner of subscription varied often in the space of 20 years, and thereby may be apt to forget whether they subscribed such deeds or not, which might be dangerous to both debtor and creditor, if they were even allowed to lie as long over as holograph writs when no diligence had been done upon them as the law directs.
As to the Parliament's refusing to limit the endurance of bills, it was observed, that, at that time, we had no act authorising summary diligence, so that ft might be thought unreasonable to fix a prescription which might affect strangers: But now, when summary diligence is allowed, if that is neglected, and such writs lie over for 20 or 25 years, without any demand upon them, they surely ought to have less faith than holograph deeds; especially if it is considered, that these last are not looked upon as permanent securities, and therefore limited to 20 years; consequently, bills are far less to be considered as such. See Scarlet upon the law and custom of exchange, p. 337. Forbes, p. 176. Savary's Universal Dict. of Commerce, p. 338. Statute of Limitations, 21st James. I. cap. 16.
The pursuer, suspecting the validity of the defence, referred resting owing to Lord Elphingston's oath,
Who deponed, “that the bill was truly accepted by him: That he has paid no part of it either to Lord Forrester, or any having his order; and that in a conversation with my Lord Forrester when in Scotland, in the 1727, my Lord Forrester acknowledged he lay under many obligations to the defender; particularly, for money lent by the defender to him while in Flanders, from the year 1707 to 1711, and particularly for entertaining his sister in his family for many years: That he was conscious he was considerably in the defender's debt, and would give the deponent up the bill for L. 50, if Mr Cuningham had been in Edinburgh: That he would do it as soon as he returned to Scotland, and would make a further acknowledgment to the defender for his favours to him and his sister: And lastly, that the defender had ground to think, that the Lord Forrester was more in his debt than the L. 50, without regard to the Lady Herberts aliment for four or five years.”
The Lords found, the oath did not prove resting owing.
