Scottish Court of Session Decisions

Subject_1 PRESCRIPTION.

John Campbell
v.
Colonel Halkett

1747, July 21.
Case No. No. 29.

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In 1688 Earl Breadalbane got the Council's recommendation to the Treasury for L.300 sterling, which in 1693 he gave to Sir Peter Murray, Receiver-General, on his receipt and obligement to pay it if it should be allowed to him. In 1696 Sir Peter had his accounts allowed, in which was this L.300, and produced the recommendation with Breadalbane's receipt of the money subjoined to it. In 1736 the pursuer, as having right to this obligement, sued the defender, as representing the granter, the 40 years not being run from 1696. The defence was, the 20 years prescription of the obligement. Answered, The suit was not on that obligement, but on Sir Patricks account with the Treasury, and he used the obligement only as evidence that he had not paid the money to the Earl. Answered, Without the obligement there is no foundation for an action, and action wight as well be sued on a holograph bond on the narrative of having borrowed the money, after the 20 years. Minto, Ordinary, sustained the prescription, and this day we adhered, but were much divided, five against four, and the President. Against the interlocutor were the President, and Tinwald did not vote, Minto in the Outer-House, Arniston absent, as he has been all this Session,—14th January 1747. 19th February last, we altered the interlocutor of 14th January, and found the holograph obligement probative of the facts therein contained. But Colonel Halkett having in his turn reclaimed, we, 9th June, took the whole circumstances of the case under consideration, and thereon found that now no action lies upon the obligement 21st July Adhered.