Triennial Prescription of Accounts, Act 1579. c. 83.
John Ross v. Alexander Shaw
Date: 19 November 1784 Case No. No 320.
The triennial prescription, of an account, not obviated by a written commission for the goods, joined to a judicial acknowledgment of the furnishing.
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Ross having pursued Shaw for payment of an account of goods furnished twelve years before, produced, in order to obviate the plea of the triennial prescription enacted by the statute of 1579, c.83, certain letters of the defender's commissioning the goods. The defender admitted the furnishing, but asserted that payment had been made; and
Pleaded; An order for merchandise, given in writing, can never be construed into a written obligation in the terms of this statute; since it affords no proof of the goods being actually furnished, or, in other words, that any debt has been created. The present case then comes not within the exception of the statute; and, as that enactment is founded on the presumption of payment, the acknowledgement of furnishing alone is of no consequence.
Answered; The act of Parliament in question contains an express declaration, that it extends not to debts founded on written obligations; from which it is probable, that its object is the proof of constitution of debt; the plain language of the whole enactment being, that the accuracy of testimony in such matters is not to be confided in after three years from their date shall have elapsed. Hence the common idea of this statute's having established, on the expiration of that period, a presumption of payment which is not to be elided except scripto vel juramento, seems to be contradicted by its terms; the presumption thus introduced being truly against the constitution of debt, if not otherwise ascertained than by parole evidence. In the present case, however, the letters must remove the hazard arising from the lubricity of testimony, so as to render it admissible, according to Lord Stair, 5th July 1681, Dickson contra Macaulay, No 288. p. 11090. But in fact, the defender, by acknowledging the furnishing consequent on the written commission, has given to it the same effect as if at the time he had added in writing a declaration of the same import.
The Lord Ordinary “repelled the defence of prescription, and found the defender liable in payment of the sums libelled.”
But the opinion of the Court was, That the prescription was not excluded, and so far they altered the Lord Ordinary's interlocutor; but found the defender liable on a different ground.
Lord Ordinary, Swinton.Act. J. Pringle.Alt. Russell.Clerk, Robertson.
Fol. Dic. v. 4. p. 108. Fac. Col. No 276. p. 277.
