Scottish Court of Session Decisions

Subject_1 BILL OF EXCHANGE.
Subject_2 DIVISION V.

Bills by the lapse of time lose their Privileges.

James Weemyss, Goldsmith in Edinburgh,
v.
John M'Nauchton, Esq; Inspector General of the Customs

Date: 13 June 1766
Case No. No 201.

Action refused on a bill which had lain over twenty-five years, the acceptor alive; but under reservation to insist for the acceptor's oath.

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

In July 1739, Mr M'Nauchton accepted a bill to Thomas Erskine for L. 25 Sterling, payable two months after date. This bill Mr Erskine indorsed to James Moncrief, who indorsed it to Mr Weemyss; who, in 1765, brought an action against M'Nauchton for payment of the bill.

The question came before Lord Pitfour, who made avisandum to the Court and appointed informations.

Pleaded for Weemyss the pursuer: By the common law of the country, there is no such thing as prescription known. Every right, legally constituted, subsists for ever; but as, in process of time, this unlimited endurance of rights or obligations was found to be attended with many inconveniencies, the exception of prescription was introduced by the act 1469, whereby an action not exercised, for the space of 40 years, was elided; and afterwards the legislature thought it expedient, by special statutes, to introduce sundry shorter prescriptions, as the triennial prescription of accounts, the vicennial prescription of holograph writs, &c.

But there was no statute limiting the prescription of bills, which must therefore subsist for 40 years. In some cases, it is true, the Court has refused action on bills that have lain over for a shorter time; but such decisions proceeded always upon the presumption of payment, and not upon the footing of prescription. And the pursuer alleged, that there was no room for presuming payment in this case, as the acceptor himself was alive, and did not condescend upon any particular time or place when payment was made.

Answered for M'Nauchton the defender: That, though no particular law has, in this country, limited the prescription of bills to a short endurance, yet the Court has been constantly in use of denying action upon them after a long taciturnity; which appears agreeable to Lord Stair's opinion, titled Probation by writ; and Lord Bankton, treating of Bills of Exchange; and sundry decisions were referred to, where the Court had refused action upon bills, that had lain over for a number of years, though not near the years of the long prescription; and, from these authorities and decisions, the defender pleaded that the taciturnity alone was sufficient to cut down the bill.

He acknowledged, that, in 1739, he borrowed L. 25 Sterling from Sir Charles Erskine of Cambo, and gave a bill for that sum to Sir Charles and his brother Thomas, then Sir Charles's factor, and from Thomas he received the money, and to him the bill was delivered; but, he alleged, that, when the bill fell due, he repaid the money to Sir Charles upon a receipt, but which receipt was not produced. And he farther contended, that he had been always in easy circumstances, and no demand ever had been made for payment of this bill, although Mr Erskine, the drawer, lived in the neighbourhood, and was in very straitened circumstances.

“On report of Lord Pitfour, the Lords find no action lies on the bill in question; and therefore assoilzie and decern.”

And refused a reclaiming petition for Weemyss without answers, reserving to him to infift for M'Nauchton's oath, if he thought proper.

Reporter, Lord Pitfour. For Weemyss, And. Crosbie. For M'Nauchton, Jo. Monro. Fac. Col. No 37. p. 62.