Scottish Court of Session Decisions

Subject_1 PRESCRIPTION.

Wemyss
v.
Alexander Clerk

1749, June 28.
Case No. No. 31.

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In 1721 Mr Wemyss put some bills for small sums with diligence on them in Alexander Clerk's hands, who was then a messenger, with discharges to the debtors, as was supposed, to execute the diligences, and in case of payment to give up the discharges; and he gave a receipt for the writings without saying for what use they were put in bis hands, or any obligement. Clerk has not for many years officiated as a messenger, and in 1744 Wemyss sued him to deliver back the writings or pay the contents. Clerk could not remember what became of them, whether he returned them to Wemyss who lived at Aberdeen, whereas Clerk lived at Inverness, or if he gave them up to the debtors on payment, and sent the money to Wemyss, or if they were aasually lost or mislaid, but was positive that one of these was the case. Kilkerran found him liable for the contents of these writs; but on a reclaiming bill we thought it dangerous on such receipts to sustain action against officers of the law after so great a distance of time;—and therefore this day found that no action could be sustained.