Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PRESCRIPTION.
Subject_3 The Triennial Prescription of Accounts applied, although the pursuer alleged that he was non valens agere, because, the sum being small, and the defender in England, the master could not afford the expense of an action in a foreign country.

Robert M'Ghie
v.
Joseph Tinkler

Date: 14 December 1776

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[Fac. Coll., VII. 331; Dict., App. No. I, Prescription, No. 3.]

Braxfield. There is no necessity for inquiring whether this case falls under the triennial or the quinquennial prescription: the maxim, contra non valentem agere non currit prcescriptio, does not arise from the state of the debtor and creditor; but it relates solely to the state of the debt: as, for example, where the debt is not payable. In the case of Campbell of Ottar, the objection of non valens agere, by reason of forfeiture, was not held good, because there was another person, the king or his donatar, who was valens agere.

Hailes. The Act of Parliament distinguishes not between persons in the country or out of the country, nor between foreigners and natives. How then can we distinguish? [The only consequence of not making the distinction is, that people in Scotland, if they are prudent, will deal with strangers for ready money, and this surely will not produce any political evil.] It is said that the case would be different in England: True; because the English statute of limitations has introduced a particular exception, which our statute has not. With the law of England we have no concern. If the pursuer liked that law better than the law of his own country, Why did he not institute his action in England?

Kaimes. When payment is not demanded for a certain time, there arises a presumption of payment, which is the ground of prescription, unless resting owing be proved by oath of the party. Is it possible to suppose that a man has paid, who left the country immediately after contracting the debt?—his absence is a demonstration against the presumption of payment.

Gardenston. It would be a doctrine rather dangerous, were we to introduce an exception, which is not in the law. Where will this stop? All short prescriptions will fall under the same exception. We may interpret statutes, but we cannot mend them.

President. These prescriptions were introduced in order to quiet the minds of the subjects: if this is not the rule, officers of the army may be pursued at any time under 40 years. The maxim, contra non valentem, &c. is a maxim in law, but a dangerous one, and not to be extended. The question here is as to a single boll of beans, but it might have been as to the clothing of a regiment: The same rule would apply to both.

Monboddo. The exception of non valens agere has nothing to do with the present case, for the creditor had always an interest to pursue. The other question is, Whether there is a different prescription inter absentes et inter præsentes? It was so in the Roman law by a particular ordinance; but there is no such ordinance with us.

On the 14th December 1776, “The Lords sustained the defence of prescription adhering to Lord Alva's interlocutor.

Act. A. Wight. Alt. H. Erskine.

Diss. Kaimes.