Bills had lain over without demand for about 30 years. The acceptor was alive. Found that no action lay for them, unless supported by the acceptor's oath to the verity of his subscription. This judgment was reversed on appeal; but on account of the particular circumstances of the case.
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In the year 1740, Alexander Garden of Troup, as assignee by the late Mr John Arrot, professor of philosophy in St Andrews, pursued Mr Thomas Rigg for payment of two bills accepted by Mr Rigg to Mr Arrot, one of the sum of L. 96:13: 4 Sterling, of the 11th May 1708, and another for L. 40 Sterling, of the 2d of May 1712; and after other defences to the form of the bills were repelled, the defender at last pleaded prescription, as the bills had lain over so long a time as 28 years, which was the case of the latest, without protest or demand.
Answered for the pursuer, That without a statute the Court cannot by judgment introduce a prescription of bills: That it would be remembered, that a few years ago, for obviating the danger from bills being suffered to lie over, the Court had it under consideration to make an act of sederunt, declaring that they would, in time coming, refuse to sustain action upon bills of exchange, after a certain term of years; but still it was not proposed to have a retrospect: And even the design was laid aside, by reason of a doubt entertained concerning the powers of the Court, in what would look very like making a new law: That in a variety of former cases, the Lords had refused to admit any short prescription of bills. Mr Forbes, observes, in his Treatise on Bills, That the Lords found, 4th February 1692, Lesly of Balquhain against Mrs Menzies, that bills of exchange do not prescribe as holograph writs, (See Writ.) In Hedderwick against Strachan, No 185. p 1626. action was sustained on a bill though it had lain over for near 20 years; and Mrs Swan against John Campbell, No 187. p. 1027. action was sustained on a bill that had lain over for 23 years; and a contrary judgment now would give just occasion to apply what has been on another occasion said, that miser a est servitus ubi jus vagum aut incognitum.
That Sir George M'Kenzie, in his observations upon the act 1669, which introduces the vicennial prescription of holograph writs, says, That he remembered the Parliament expressly refused to limit bills of exchange to that time: That neither the French ordonnance in 1673, limiting bills of exchange to five years, nor the English statute of limitations of James I. of England, limiting them and all actions on the case and obligations, without speciality, to six years, as they are the statutes of foreign countries, have any force with us. And as in those several countries a statute was necessary to introduce the limitation, and which in the different countries is various, not only do the statutes in these countries afford no argument for the defender in the present case, but on the contrary they afford a strong argument, why, in a country where there is no statute of limitation, a court of judicature cannot supply it.
Nevertheless the Lords, upon the 6th January 1746, by a small majority, on report, found, “That no action lay upon the bills pursued for, which had lain over so long a time without demand, unless supported by Mr Rigg's oath upon the verity of his subscription to the acceptance;” and, of this date, ‘adhered.’
What the Lords put the judgment on, was not prescription, but that the bills were not probative: That bills, though not holograph, are probative, because of the expediency of commerce from the example of other nations; and because, as Lord Stair expresses it, they are not supposed or intended to ly over. It were therefore absurd, that they should continue to be probative when they have lain long over, to the great danger of commerce; but, it is still left undetermined, how long they will be found to continue probative, though in the reasoning the term of 20 years was pointed at.
Nor did the minority differ from this general reasoning, but rather declared themselves of the same opinion, had the case been of a bill that had lain so long over without demand, the acceptor dead, and no circumstance to support the authenticity of the bill; but such were the circumstances of this case, as inclined them to be of opinion, that process lay upon the bills in question. The acceptor, who is still alive, and the person defending this action, was so far from objecting to the authenticity of the bills, that the first defence he made supposed their authenticity, viz. That they were null, as bearing annualrent and penalty; and from which objection the Lords found he was barred personali exceptione as having been Mr Arrot's ordinary lawyer at the time, vide 26th November 1743, voce Personal Objection. When he was beat from this, he then pleaded prescription, which still supposed that the bills had once been good documents of debt; but never once positively alleged, that the bills had not been truly accepted by him. The most that he ever said was, that they were suspicious, being all written by the drawer himself, except the subscription, which, for any thing be remembered, might be the drawer's also. A variety of circumstances were likewise insisted on by the pursuer for supporting the authenticity of the bills, unnecessary to be mentioned; and from the complexion of the whole case, the minority, as has been said, were of opinion, that action lay upon the bills; and that as the defender had, as the proceedings are above stated, in effect rather admitted, than denied his subscription, there was no necessity for laying the issue of the cause on the defender's oath, which the pursuer was not willing to submit to.
Notwithstanding this, the Lords adhered to the above interlocutor.
N. B. This judgment was on appeal reversed; and, as is informed, not on the general point, but on the circumstances of the case; so that the general point may still be thought entire, should a question hereafter occur upon it.
Kilkerran, (Bills of Exchange.) No 12. p. 76.
*** For the particulars of the Appeal see the case between the same parties, voce Personal Objection.
*** D. Falconer reports the same case:
Mr Thomas Rigg of Morton, advocate, granted bill, 11th May 1708, for L. 666: 13: 4 Scots; and another, 2d April 1712, for L. 40 Sterling, to Mr John Arrot, Professor of Philosophy in the University of St Andrews, who having disponed his effects at his death to Mr Alexander Garden of Troup, advocate; the disponee's son and heir raised a process against Mr Rigg, in the year 1740, in which it was objected, That the bills were not probative after so long a time; and Mr Rigg, in a condescendence given in by him, affirmed, that he could not charge his memory he had ever seen them, till the year 1741, that they were given out in process.
Pleaded for the defender, That bills of exchange were introduced amongst us, in imitation of the practice of other trading nations, where they were subject to a short prescription; thus, in France, they prescribed in five years by an ordinance made concerning them, anno 1673, and in England in fix; and if they should be found with us to give a perpetual ground of action, it would be deviating from the general practice, as it would also be a great prejudice in rendering ineffectual all the solemnities necessary to the execution of other writs, and contrived for the preventing frauds; which precaution might easily be eluded, by framing bills, and letting them ly over, till it should be impossible to cavil them; that Stair, b. 4. tit. 42. § 6. said, “Bills that are kept up for any considerable time, are not probative.”
That the present bills laboured under several suspicions, being all wrote with the drawer's hand, and having lain over so long undemanded, although the creditor was sometimes in straits, and the acceptor had always been in credit.
Pleaded for the pursuer, That bills were with us probative deeds, and as there was no statute limiting them, they behoved of necessity to last the time of the long prescription. They were not introduced by the act 1681, but received before that time by custom; and as in France, before 1673, there was no prescription of bills; so if we received them in imitation of it, and other foreign nations, all whose prescriptions concerning them were founded on statute, it followed that we adopted them as in use amongst them; that the act 1681, in referring to the practice of nations, only copied the giving summar execution, but not the limitations by that time received in any of them; for supposing it to have done so, it would be a question what was the limitation received; and so certain was it, that before they were subject to none, that Sir George Mackenzie expressly said, it was proposed in Parliament to subject them to the vicennial prescription, and refused; that thus the decisions had gone, 4th February 1692, Lesly of Balquhain against Mrs Menzies, see Writ; June 1728, Cowan against Wingate, See Writ; 5th July 1734, Relict of Swan against Campbell, No 187. p. 1627.; 25th July 1732, Rodgers against Cathcart and Ker, see Writ.
The bills were no ways suspicious, and the argument drawn from the forbearance was sufficiently obviated by letters of Mr Rigg's, produced, wherein he asked delays of a debt in general, which behoved to apply to this, as he did not produce the letters to which his were answers.
The Lords, 6th January 1747, found that no action lay on these bills which had lain over so long a time without demand, unless supported by Mr Rigg's oath upon the verity of the subscription to the acceptance: And on bill and answers adhered.
Reporter, Elchies.Act. W. Grant.Alt. J. Grant.Clerk, Gibson.
Fol. Dic. v. 3. p. 91. D. Falconer, v. 1. No 165. p. 216.
