Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 BILL OF EXCHANGE - PRESCRIPTION.
Subject_3 A partial payment made and marked on the back of the Bill, after the running of the sexennial prescription, by the representatives of the debtor, saves from the prescription.

William Scott
v.
Andrew Gray

Date: 3 February 1784

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[Fac. Coll. IX. 218; Dict. 11,126.]

Braxfield. The Act of Parliament is not accurately worded: it goes no farther than to a presumption of payment; but this is not an extinction of the debt,—still probable by writ or oath. The supposed debtor must say that he paid, and he is not entitled to add qualities. I am not obliged to go to his oath; his writ is as good as his oath. The acknowledging a debt to be due before the six years have elapsed, is nothing; but, after the six years, it is good to interrupt. Any acknowledgment by writ is sufficient, and that we have here.

Hailes.I doubt whether words written by a man, not in his own name, but to assist another, be writ in the sense of the statute.

Swinton. 1 cannot make a distinction between promise of payment, within the six years, or after. Payment was made by the heir of the debtor, who might possibly have been ignorant of the facts.

Gardenston. A promise to pay, during the currency of the years of prescription, is an argument of the debt having been paid within those years, because otherwise the promise would have been enforced; but the case is very different when the promise or acknowledgment is made after the years of prescription have run.

Eskgrove. My doubt is as to the payment being made by the heir of the debtor. An heir, or an executor, may sometimes know that the debt subsists; but that is not generally the case. Resting owing, in the case of an executor, must be different from that in the case of the original debtor. The executor can only swear as to belief,—the original debtor can swear from knowledge.

Justice-clerk. I have no occasion for the oath, since I have the writ of the debtor admitting the debt to be due.

Henderland. An heir or executor can only go on the information of others.

On the 3d February 1784, “The Lords sustained the action, and repelled the defences.”

Act. A. Wight. Alt. H. Erskine. Reporter, Stonefield.