A partial payment made, and marked on the back of a bill, after the running of the sexennial prescription, by the representative of the debtor, found to save from the prescription.
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Andrew Gray granted a bill to Scott. After this bill had undergone the sexennial prescription of act 12th Geo. III. John Gray, the heir of Andrew, who had died in the interim, made a partial payment of its contents, expressing his having done so by a marking on the back of it in his own hand-writing. Scott having sued John in an action for the balance, it was
Pleaded for the defender; Had the marking in question been affixed after the lapse of the statutory period by the debtor himself, then perhaps it might have operated as a written acknowledgment of subsisting debt; but ought not to have that effect, when done by his representative, misled, through ignorance, by the appearance of an unretired bill.
Answered; The ignorance alleged by the defender is contrary to the presumption arising from the circumstances of the case above mentioned, and no proof of it has been given.
The cause was reported to the Court by the Lord Ordinary.
The Lords “found the partial payment of the debt in question subsequent to the running of the sexennial prescription, and other circumstances of this case, sufficient to bar the said prescription.”
The Court adhered to this judgment, after advising a reclaiming petition and answers.
Lord Ordinary, Stonefield.Act. Wight, Currie.Alt. Henry Erskine.Clerk, Campbell.
Fol. Dic. v. 4. p. 103. Fac. Col. No 139. p. 218.
