Scottish Court of Session Decisions

Subject_1 PART I.

PRESCRIPTION.

Macghie
v.
Tinkler

Date: 17 December 1776
Case No. No 3.

The triennial prescription of accounts applied, altho' the pursuer alleged that he was non valens agere, because the sum beings small, and the defender in England, the matter could not afford the expence of an action in a foreign country.

See No. 317. p. 11112.

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Tinkler, who was a Quartermaster in the first regiment of dragoons, was charged by Macghie before the Bailies of Hamilton, for payment of L. 10 Scots, as the value of a boll of beans, and of one shilling and sixpence Sterling for drying and breaking another boll. These furnishings, and this work, had been performed, according to the charger, in the year 1764, at the desire of Mr Tinkler. In a declaration, however, emitted before the Bailies of Hamilton, Tinkler denied any recollection of either the furnishing or the work. A proof upon this was allowed to Macghie, in consequence of which, the Bailies pronounced decree in terms of the libel, and for the expence of extract. Of this judgment Tinkler brought a suspension before the Court of Session, which Lord Alva, Ordinary, (7th December 1774,) refused. A representation was given in for the suspender against this interlocutor, in which he had recourse to the plea of prescription. The Lord Ordinary, upon advising this representation, with answers for the charger, pronounced (4th July 1776) the following judgment:

“Having advised the representation for Joseph Tinkler, and answers for the charger, recalls the interlocutor of the 7th December last, and finds, that the triennial prescription takes place in this case; and in regard that the charger has not offered to prove resting and owing by the oath of the suspender, suspends the letters simpliciter, and decerns.”

And to this judgment his Lordship adhered by two consecutive interlocutors.

The charger having reclaimed to the whole Lords, contended, first, in point, of fact, That however thetriennial prescription might apply to the small article of 1 s. 6 d. for drying and breaking a boll of beans, with regard to which the charger might perhaps appear in the character of a tradesman, yet it could not apply to the boll of beans which was purchased from him; for this being a bargain concerning moveables, is liable only to the quinquennial prescription; and it does not appear that the five years are yet elapsed.

But, supposing actions for debts of this kind to fall under the triennial prescription introduced by the act 1579, still it ought not to take place in the present instance. The short statutory prescriptions of the law of Scotland, were introduced upon a presumption that such debts would not be allowed to lie over for any length of time without being demanded. But, in the present case, the suspender had marched soon after the debt was contracted, with the regiment to England; and the charger had there no possible opportunity of bringing an action against him in this country, being informed that he had no forum originis here. Nor could a jurisdiction be founded against him by using a previous arrestment: The suspender left no effects in this country, consequently there was no person in whose hands an arrestment jurisdictionis fundandæ causa could be used. The charger was therefore non valens agere; and against persons in that predicament no prescription can run. And as to suing the suspender in England, this would have been madness on the part of the charger, as the expence of bringing a proof in that country would have cost at least twenty times the value of the sum in question. The laws of every country, besides, are in general enacted with a view to its own subjects alone. The statutes which introduced the short prescriptions, were designed to prevent natives having their ordinary residence here, from harassing each other with lawsuits for particular sorts of debts, unless they could establish the justice of their demands in a particular manner. But the Legislature could never mean to hurt its own subjects, by giving the benefit of these statutes to foreigners, who may leave the country immediately after contracting such debts, and not return for a number of years. In short, the situation of the inhabitants of Scotland would be hard indeed, were persons, who, after contracting debts in this country, march off to England, to America to the East Indies, or to the most distant corners of the earth, to be allowed to plead the triennial or quinquennial prescription in bar of payment. Common sense, common justice, must satisfy every person, that this never could be the intention of the Legislature.

For the suspender, it was answered on the first point; That it was totally immaterial whether the triennial or quinquennial prescription be most applicable to the nature of the charger's claim. For that actions for trifling furnishings, such as the present, have again and again been barred in every court of this country by the triennial prescription.

As to the argument, that this prescription cannot apply, upon account of the absence of this suspender from Scotland;—the removing from Scotland to England, or from England to Scotland, can never put it out of the debtor's power to operate payment, or at least to bring an action against his debtor to save prescription. The charger's plea, therefore of being non valens agere, is no bar to the plea of prescription; for he might have commenced action when he chose. The maxim, besides, Contra non valentem agere, non currit præscriptio, can only afford a defence against prescription when the act establishing such prescription expressly makes it an exception. This the suspender endeavoured to illustrate from the case of minors, from the case of a person under forfeiture, from the case where courts of justice do not sit, in time of war or pestilence, &c. In all these cases, the parties are evidently non valentes agere, and yet in all of them, statutes have intervened to save the prescription by an express exception. But in the act 1579, establishing the triennial prescription, there is no such exception. The charger's plea, therefore, would fall to be set aside, though he had been truly what he was not, non valens agere.

With regard to the inconveniencies figured by the charger, from the prescription being allowed to be pleaded by foreigners, it was answered, that these were nothing to the ill consequences which must arise, by hanging up actions over the heads of our neighbours in England, from which no length of time could secure them. Fictitious debts might be reared up against any gentleman who has resided in Scotland but for a few weeks, and witnesses might be brought to support those debts, whose false evidence, at such a distance, it would be impossible to detect.

Natives of England might even be harassed by prosecutions on penal statutes, after the means of defending themselves were lost.

The Court seemed to think this a question of some difficulty, and one of the Judges inclined for a hearing. It was observed, that the point upon which the cause hinged was, that Tinkler left the country, and did not return till the prescription had elapsed. But it was remarked upon this head, that the brocard, contra non valentem agere, non currit præscriptio, does not arise from the situation of the party, but where, from the nature of the right, the action cannot be brought. The charger might have followed the suspender to the Eaft Indies. He was all the time valens agere. This question, besides, involves all the short prescriptions. If exceptions be introduced, it is impossible to know where to stop.

The Court accordingly (17th December 1776) “adhered” to the Lord Ordinary's interlocutor, “and found expences due to neither party.”

Lord Ordinary, Alva. Act. Wright. Alt. H. Erskine.