Prescription, by the Law of which Country regulated.
William Ewart v. John Gourlay
Date: 14 February 1767 Case No. No 68.
In an action brought for payment of a debt, the defence of prescription, founded on the statute of limitations, was eluded by an offer to prove a promise of payment by witnesses, within the years of prescription.
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John, an Englishman, having become indebted to William, in the year 1757, in a sum of money paid by him for John, he, William, in 1765, obtained a border warrant from the Sheriff of Berwickshire, and did arrest the person of John, who found caution judicio sisti et judicatum solvi.
William thereafter insisted in an action against him and his cautioner for payment.
Pleaded in defence, That this debt having been contracted in England, fell to be regulated by the laws of England; and, if so, it was cut off by the statute of limitations, 21st Ja. 1. cap. 16. 2do, The defender condescended upon certain circumstances, from which he argued, that a clearance had been made, and the debt discharged.
The Sheriff found it presumed, “That there had been a total clearance betwixt the pursuer and defender; and therefore found the action not relevant, after so great a distance of time, unless instructed by writ, or the defender's oath.”
The cause was brought before the Court of Session by advocation, in which it was argued, That the defender could not avail himself of the defence founded on the statute of limitations, in respect the pursuer offered to prove, by sundry witnesses, that the defender had acknowledged the debt within the years of prescription, which, it was said, by the authority of all the English lawyers, particularly Bacon, title Limitation of Actions, Salkeld's Reports, vol. 1. p. 28, 29, &c. revived the debt, even after the years of prescription were run; and if so, multo magis if within the years of prescription.
Answered, That although the English lawyers lay it down as a principle, that a promise of payment, if proved, bars the defence founded on the statute, yet none of them insinuate that such promise can be proved by witnesses; and, therefore it was rather to be presumed that such proof was not competent, which is undoubtedly the case, by the Scots law, and ought to be held as law in the present question, more especially as the promises are said to have been made in Scotland, where an allegeance of this sort can only be proved by writ or oath of party.
‘The Lords remitted the cause to the Sheriff, with an instruction to allow a proof of the defender's promise of payment, by witnesses.’
Act. Dickson.Alt. P. Murray.
Fac. Col. No 60. p. 104.
