The production of bills with registered protests, in a process of rankling and sale, found to be sufficient interruption of the sexennial prescription.
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Douglas, Heron and Company, in 1781, raised an action for payment of certain bills which had become payable more than six years before its commencement. These bills were all of them protested, and most of the protests were registered. Within the statutory period, too, they had been all produced in a process of ranking and sale of the debtor's estate; and on some of them, in which there were other obligants besides the party now sued, diligence had been done against those persons. The defence of the sexennial prescription having been urged, it was
Pleaded for the pursuers; The prescription has been interrupted in three different ways; First, By the protest and registration, which import a legal demand of payment, a document taken on that demand, and a preparation made for the execution of diligence; Secondly, By the production of the bills in the process of ranking and sale, in the same manner as if that common action had been a particular one, instituted for the behoof of the pursuers alone; And, lastly, It has been interrupted by timely diligence done on these bills, though against other obligants, agreeably even to the terms of the statute of 1772, which mentions in general the raising of diligence, or the commencement of action. This mode of interruption is established in regard to the long pescription; Bankton, b. 2. tit. 12. § 64.; Erskine, b. 3. tit, 7. § 46.; Sections 15. and 16, h. t.: And it does not appear to be less applicable to the shorter ones.
Answered; A protest and registration are not equivalent even to the raising of diligence, much less its execution; both of which the statute requires to produce interruption. As little effect had the exhibition of the bills in the above mentioned process, agreeably to what was determined in the last resort, in the similar case of Hay contra King's Advocate, 27th July 1757, infra, h. t. Nor could diligence done against other obligants create the interruption in question.
The Lord Ordinary “repelled the defence of prescription.” And,
On advising a petition, reclaiming against that judgment, with the answers, the Court, considering the protests, though registered, as insufficient to interrupt prescription, and it being unnecessary to notice the few bills on which diligence had been done, “found that the grounds of the debts in question having been produced in the process of ranking, was a sufficient interruption of the prescription.”
Lord Ordinary, Elliock.Act. Blair.Alt. Dalzell.Clerk, Orme.
Fol. Dic. v. 4. p. 104. Fac. Col. No 179. p. 282.
