Hugh Stewart of Northwoodside, v. The Trustees of George Houston of Johnston
Date: 15 July 1760 Case No. No 197.
Action refused on account of the circumstances of the case, on a bill which had lain over 27 years.
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George Houston of Johnston was, in summer 1755, charged for payment of a bill of L. 15, accepted by him, of date 5th March 1728, and payable to Hugh Stewart of Northwoodside against the 5th day of May thereafter.
Mr Houston suspended the charge; but having died before the suspension was discussed, the process was transferred against his apparent heir, and certain trustees named by him in his last will to manage his estate for behoof of his heir and creditors.
Pleaded for the suspenders, That this bill was no legal document of debt, as it had lain over for 27 years, without diligence done upon it, and had not been homologated by payments of interest, or otherwise. Besides, from the circumstances of the case, there is the strongest presumption that this bill was paid and extinguished soon after it became due: For it appears, that Mr Houston was proprietor of a considerable lime-work in the neigbourhood of Mr Stewart's farm; that he was in use to furnish him in large quantities of lime; and that he sometimes borrowed small sums from his neighbour Mr Stewart, which were afterwards allowed in accounting for the lime; and, particularly, there is evidence, from a missive produced, that not long after the date of the bill in question, viz. in July 1729, Mr Houston burned some kilns of lime for Mr Stewart, which were to be delivered to him in payment of certain sums which he then owed him; probably, among others, the bill in question.
Answered for the charger, Bills are probative by act of Parliament; and as no prescription of them is established, shorter than the long prescription of 40 years, they must be held as legal documents of debt within that period. The presumption of payment from the long taciturnity can have no weight in this case. Mr Houston was very inexact in his payments; and Mr Stewart was unwilling to press a friend and neighbour for so trifling a sum. The harger does further aver, that he was in use to pay ready money for the lime furnished to him by Mr Houston; and the lime-books are not produced to show the contrary: Neither is there sufficient evidence, that the quantity alluded to in the missive was actually furnished.
‘The Lords, in respect of the circumstances of the case, found, That no action lay upon the bill; and suspended the letters simpliciter.’ See Prescription.
Act. Wa. Stewart.Alt. Ilay Campbell.
Fac. Col. No 232. p. 425.
