Children of Sir Samuel M'Clellan v. The Representatives of Captain Menzies of Enoch
Date: 24 June 1756 Case No. No 358.
A bond being conveyed to trustees for the use of children, and not pursued for during 43 years, was found to be prescribed, notwithstanding the minority of the children.
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In the year 1708, James Menzies of Enoch granted bond for L. 500 Sterling to Sir Samuel M'Clellan, payable at the next term.
In the year 1709, Sir Samuel assigned the above bond to certain trustees, for the use and behoof of his children, according to such divisions and proportions as the said trustees should think fit; which trustees he, in the same deed, appointed to be tutors and curators to his children, and declared them not to be liable for omissions.
Soon after he died, leaving his children under age; some of the trustees tutors entered upon their office, but neglected the affairs of the children; so that nothing was done upon the bond for 43 years and a half, nor did the trustees make any division among the children.
After these 43 and a half years, the children brought a process against the Representatives of James Menzies for payment of the bond. The defence was prescription; and the answer was, that the pursuers were minors more than ten of the 43 years and a half.
Pleaded for the defender; The right to the bond was vested in the trustees; they alone had the jus exigendi; in such a case, those for whose behoof a trust is taken, are no more than creditors to the trustees to the extent of their debt. Prescription runs against the trustees, and the minority of the children cannot interrupt it.
2do, The children had no title to plead their interest as minors, as long as the division was not made by the trustees, and the trustees were alive; seeing that, till the division was made, the children could never be certain of having a share or interest in the subject.
Pleaded for the children; Whatever may be the effect of a deed granted to trustees ex facie absolute, and qualified only by a separate back bond, the present deed merits a different consideration, which in gremio bears to be granted for behoof of the children, in which the trustees are appointed tutors for them, and were declared liable only for their omissions, and which therefore must be looked upon only as a more extensive factory for the care of the children's affairs; in such a case, the prescription must be regulated by the state and action of the children, and not by the action of the trustees tutors.
“The Lords found that no action lay upon the bond in question after the lapse of 43 years and a half from the time of payment thereof.”
Act. A. Pringle, M'Queen.Alt. Miller.Clerk, Kirkpatrick.
Fol. Dic. v. 4. p. 111. Fac. Col. No 207. p. 304.
