Action refused on a bill which had lain over 39 years. The acceptor was dead.
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John Campbell of Mamore, in November 1722, accepted a bill to Humphrey Colquhoun, maltman in Dumbarton, for L. 79: 7: 6 Scots, payable a Candlemas 1723.
Mamore died in 1730, and his son, now Duke of Argyle, was served heir to him cum beneficio inventarii.
In summer 1762, Walter Colquhoun, as representing his deceased father Humphrey Colquhoun, brought an action against the Duke of Argyle, as representing his father Mamore, for payment of the above-mentioned bill.
Two defences were pleaded for the Duke against this action. 1mo, His service upon the inventory, which he alleged was exhausted; and, 2do, The antiquity of the bill, which, he contended, presumed payment, and excluded any action upon it.
And, in support of the first of these defences, it was pleaded, That the law does not oblige an heir, who enters cum beneficio, to value or sell his estate; it is enough that he gives it up in inventory; and he will be safe if he can show, by rational evidence, that this inventory is exhausted by payments; and if any creditor, at a distant period, disputes the fact, he ought to prove his allegation; as it would be hard to oblige an heir, after a long lapse of time, to enter into a regular process for valuing his predecessor's estate, or to assign the inventory, which, it appears, was long ago exhausted, and no proof of the contrary offered; and, in this case, there were produced vouchers to show that the Duke had paid debts of his father's to the extent of 30 years purchase of the rental of the estate; which, it was contended, was full evidence that the inventory was exhausted.
In support of the other defence, it was pleaded, That, although there was no statutory prescription of bills in this country, yet in many questions which have occurred, action has been refused upon bills after long taciturnity; and no case can be pointed out, where ever action was sustained upon a bill after it had lain over for so long a period as that now used on, within a few months of the long prescription; more especially, when such questions occur between heirs after the death of the original parties, as is the case here; and a number of decisions were mentioned, in which the Court had refused action on bills of much more recent dates.
Answered for Colquhoun the pursuer: To the first point, The law does not allow an heir of inventory to hold his predecessor's estate at the value put upon it by himself. It is true, such heir may bring an action against the creditors of his predecessor for valuing the subject of his inventory; and, in that case, he would be no farther liable than the extent of the proved value, as was found in the cases, Gray contra M'Call, 6th July 1733, (voce Heir cum Beneficio.); and Murray contra Creditors of Pilmuire, 17th February 1736, (Ibidem.) But the creditors may, if they insist, bring the estate to a sale, as was found, 12th July 1738, Heirs of Strachan of Glenkindy contra his Creditors, (Ibidem.); and therefore, an heir of inventory, who holds his predecessor's subjects without properly ascertaining the value of them, must be bound, either to pay his predecessor's debts, or assign the inventory to any creditor who demands his payment.
Upon the other point, it was pleaded for the pursuer, That the lapse of time was, at any rate, a very unfavourable defence; but, as bills were obligatory writs acknowledged by the law, and limited by no short prescription, they must of course be effectual for 40 years; and that all the decisions founded upon by the defender proceeded upon circumstances which gave reason to presume payment, which is not alleged in the present case; and, therefore, decree ought to go against the defender.
The Lords found, ‘That, post tantum temporis, no action lies upon the bill in question; and therefore assoilzied, and decerned.’
A reclaiming petition for Colquhoun was refused, without answers.
For the Duke of Argyle, Ilay Campbell.For Colquhoun, Cosmo Gordon.
Fac. Col. No 53. p. 93.
