Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By James Burnett,Lord Monoboddo.

Mrs Wright and Factor
v.
Mr David Dickson

Date: 20 February 1753

Click here to view a pdf copy of this documet : PDF Copy

[Fac. Coll. No. 65.]

A Commission of lunacy was taken out against a man in England, and the custody of his person was committed to one and the care of his estate to another: He to whom his person was committed maintained him in bed and board for many years, and during that time furnished him with other things that he wanted, such as clothes, and also paid surgeons' accounts for him, and one account that was due before he got the custody of him, namely, the attorney's account of expenses of procuring the commission of lunacy. The question came, Whether this account of furnishing fell under the statute of limitations in England, limiting the endurance of actions on such accounts to six years? And the Lords found, That accounts prescribe by the English statute in the same manner as by our law, that is, from the last article in the account; insomuch, that, if it had run on for never so many years, it still continued the same account, till either it was fitted and closed, or till three years (or, according to the English statute, six years,) had elapsed without any furnishing, for after that a new account commences, and the old one is cut off by prescription.

On this occasion Lord Elchies mentioned a decision wherein it was found, that an account of aliment, furnished to a child from year to year, fell under the prescription of our statute 83 an. 1689, as included under the name of men's ordinaries, so that every year's furnishing of the aliment prescribed by itself; but this decision, he said, was altered by the House of Peers, who chose to put such furnishings rather upon the foot of merchants' accounts.

Another question here was, How far the other articles besides the bed and board, particularly the article of the attorney's account, above mentioned, could be sustained as articles of the open account, and so be found not prescribed,— or whether they were not to be held as separate grounds of debt, liable to separate prescriptions?

It was said, That if a merchant in Edinburgh, furnishing clothes to anybody, should take it into his head to pay his doctor's and writer's accounts for him, these articles would certainly not be held as articles of his open account, and so be safe against prescription: But Lord Elchies said that the case was different,—that the keeper of the madman here was to be considered as a curator bonis, whose business it was to furnish everything for the person under his care, and, among other things, to pay the expenses of his own nomination, as much as it is the merchant's business to furnish his customers with clothes. And so the Lords unanimously found.