Vicennial Prescription of Retours, and of Holograph Writs.
Alexander Home v. Alexander Donaldson
Date: 19 January 1773 Case No. No 191.
The vicennial prescription, in terms of act 1669, c. 9. of a holograph missive letter of relief found to commence precisely from its date; and that the act admits not of any latitude in that respect, even in a question with the heir of the creditor, pleading both ignorance of his right, and that it was, in its nature, not an absolute obligation, but pendent upon a condition; and therefore the prescription could only begin to run from the time of the distress, as in the case of warrandice.
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This action was laid upon a letter of relief granted to the pursuer's father by the father of the defender in these words:
“August 20. 1742. Sir, As, at my desire, you have, of this date, accepted a bill with James Craw brewer in Canongate, for L. 20 Sterling, payable against Candlemas next; therefore, I hereby promise to keep you free from payment of the said sum, interest and damages that may follow thereon. (Signed) Alexander Donaldson.”
Directed, ‘To Mr John Morison-Hume of Law, residenter in Canongate.’ The pursuer subsumed, that, in the year 1759, he, in order to relieve his father, and upon being applied to for payment of the relative bill by Messrs Hogg, to whom it was accepted, his father being then non compos mentis, had accordingly paid the same, while ignorant of the letter of relief his father had got from Donaldson, which he had at length found among his father's papers, but not till the death of his mother, who, being proprietor of the estate of Law, had, for several years after her husband's decease, which happened in 1762, continued in possession of the estate, and of all her husband's writs and repositories; and, upon this letter, he now insisted against the defender, as representing his father, for payment of the contents of the principal bill.
Pleaded in defence; That the letter of relief in question, which is a holograph writ, fell under the vicennial prescription, and was not actionable. The statute 1669, cap. 9. enacts, “That holograph missive letters, and holograph bonds, and subscriptions in count-books without witnesses, not being pursued for within 20 years, shall prescribe in all time thereafter, except the pursuer offer to prove, by the defender's oath, the verity of the said holograph bonds, and letters, and subscriptions in the count-books.”
Answered; It appears from the letter of relief sued on, that the obligation constituted by it, depended upon the existence of a future event. It was altogether uncertain, whether this event should ever exist; and, therefore, the letter of relief was not a pure, but a conditional obligation in the proper legal sense of the phrase. Hence it follows, that prescription can only be understood to commence from the period of distress; for, at that time only could the condition be said to be purified; and no relief that could be demanded prior to distress could preserve the co-obligant in the bill from payment to the creditor.
It is true, that the act of Parliament with regard to holograph bonds and holograph missives, may, at first sight, be understood to strike against the letter of relief in question, as being dated in the year 1742; but the same rules and defences competent to be made in other questions of prescription, ought to be admitted in this case. There is a strong analogy between an obligation of relief and that of warrandice; and there is nothing in law more certain, than that, in obligations of warrandice, the prescription is accounted to run from the period of distress, or eviction only; and the reason of prescription, which is particularly expressed in the act of Parliament, is the not following the right; and, therefore, it is a just inference, that prescription is not to be accounted to run till the right could be followed; Stair, b. 2. tit. 12. § 27. Hence the prescription pleaded in this case, commences to run against the pursuer only from the year in which he made payment of the debt in question; for, before that period, there can be no reason for supposing that he had relinquished any claim competent to him, in consequence of Mr Donaldson's letter of relief.
Observed on the Bench; The vicennial prescription affords a good defence. The law had a doubt of such obligations; therefore, does not allow them to be probative after 20 years, unless the verity of the subscription be supported by the oath of the granter; and the holders have occasion to pursue sooner; because, unless sued on, they will not be probative. The case here is very dissimilar to that of warrandice; and, were the pursuer's plea to be listened to, the act of Parliament would be eluded.
“The Lords sustained this defence, and assoilzied the defender.”
Act. Ja. Grant.Alt. Jo. Douglas.Clerk, Campbell.
Fol. Dic. v. 4. p. 99. Fac. Col. No 46. p. 122.
