Thomas Pringle of Symington, v. John Murray, Tenant in Fairnyhirst
Date: 18 November 1760 Case No. No 198.
Action sustained on a bill after 19 years, the drawer being alive, and making oath, that the contents were still owing.
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William Murray, the defender's father, possessed a farm belonging to Pringle of Symington, the pursuer's father.
On the 13th December 1732, William accepted a bill drawn upon him by, and holograph of, the pursuer, for ten guineas, payable against the 15th November 1733.
The pursuer's father died in 1738; after which William, the acceptor of the bill, possessed under the pursuer until his death in 1744.
The defender succeeded to his farm and effects; and soon after there was a clearance between the pursuer and him, with respect to his father's possession, and a discharge granted for all bygone rents. He continued to pay his rent as it fell due; but neither at the time of clearance, nor for ten years afterwards, was there any mention made of the above bill.
In 1753, Mr Pringle pursued Murray for payment of this bill; and obtained decree in absence for the contents of it, after deducting L. 5 marked paid thereon.
In a suspension of this decree, it was pleaded for Murray, 1mo, That all action on this bill was loft by the pursuer's taciturnity, it having lain over from the year 1732 to 1753: That this doctrine, founded upon the very nature of bills, was established by all our lawyers; Stair, b. 4. tit. 42. § 6.; Bankton, b. 1. tit. 13. § 31.; and their opinions confirmed by a variety of decisions; Wallace against Lees, No 189. p. 1631.; Moncrieff against Moncrieff, No 7. p. 478. and No 31. p. 1428.; Lookup against Crombie, No 193. p. 1635.; and several others.
2to, That the frequent transactions between the parties during all that time, without any mention of the bill, confirmed the suspicion against this debt, and the legal presumption of payment or extinction.
3tio, That these objections were not removed by the receipt of a partial payment wrote on the back of the bill. For if such a jotting on the back of a bill, was to hinder it from being cut off by the taciturnity of the drawer, a pretended creditor, who had either forged a deed, or possessed himself of a ground of debt already paid, might preserve it in force, after all opportunity of detection was loft, by writing on it receipts of partial payments.
4to, Neither could the bill be supported by the drawer's oath in supplement. It would even be an extraordinary indulgence, to refer it to the oath of the acceptor's representative. Sir George Mackenzie observes, on the act 1669, “That holograph writs and subscriptions, without witnesses, not pursued within twenty years, are only to be proven by the oath of the subscribers; so that if the subscriber dies, these writs die with him.” Therefore, as in the case of a holograph bond, the debt cannot be proved, after twenty years, by the oath of knowledge of the granter's representative; far less ought such oath to be put to the representative of the granter of an old bill; as bonds are intended for permanent securities; which, it is certain, bills are not.
Answered for the charger, 1mo, With regard to taciturnity, in this case the bill did not lie over for twenty years, which is the shortest time that has ever been found to cut down a bill on that head. The bill was payable 15th December 1733, and the summons for payment of it was executed on 26th April 1753, which is little more than nineteen years. The present case, therefore, does not at all quadrate with the decisions referred to by the pursuer; for in all of them the taciturnity continued above twenty years.
2do, The transactions between the parties can never be construed into an extinction of the debt. The money was lent out of favour to the defender; and the same cause occasioned the delay of seeking payment.
3tio, It is not necessary to plead the partial payment marked on the back of the bill as an interruption; for though no receipt had been there, the bill itself was not prescribed. Nor does the opinion of Sir George Mackenzie on the act 1669 apply to the present case: For, 1mo, There is no law by which bills prescribe, like holograph writings, in twenty years. 2do, This bill was made a ground of action within that time.
‘The Lords sustained action on the bill, the pursuer making oath, That the contents of the said bill, drawn by himself, were still resting owing, so far as by him claimed in this process.’
Act. G. Pringle.Alt. Rae.
Fac. Col. No 246. p. 448.
