What diligence sufficient. - Effect of partial interruption.
The Earl of Hopeton v. The Creditors of the York-Buildings Company
Date: 21 July 1784 Case No. No 451.
Prescription not interrupted by informal diligence.
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In the ranking of the Creditors of the York-Buildings Company, a claim was entered, in the year 1779, by the Earl of Hopeton, in virtue of a contract which had been executed, in the year 1731, between his father, the late Earl, on the one part, and Colonel Horsey, as commissioner for the York-Buildings Company, on the other.
To this claim the Creditors of the Company objected the negative prescription of 40 years, the only document taken on it having been a horning executed in the year 1743, not against Colonel Horsey, but against the managers of the Company.
Pleaded for the Earl; Though Colonel Horsey was the nominal party, the contract bound the York-Buildings Company, and them only. The omission, therefore, to take a decreet of constitution against them, as the warrant of the horning which followed, being merely an inaccurncy in point of form, will, in a question of this sort, be altogether disregarded.
Answered; There is a solid distinction between the informal execution of regular diligence, which has been admitted as a sufficient intimation of the claimant's intention to prosecute, and the using of diligence intrinsically inept and void, to which no effect can be given; Erskine, b. 3. tit. 7. § 40.; Reid against Ker, No 440. p. 11273. Of the latter sort was the horning in question. To Colonel Horsey, the proper and only debtor In the obligation, it could afford no notice, because it was not executed against him; and it was equally ineffectual against the Company, who were no parties to the contract, on which alone it could proceed.
The Lords admitted the distinction, and found, “That the horning executed in the year 1743 against the Governor and Assistants to the Court of Directors of the York-Buildings Company, was an inept diligence, and did not interrupt the negative prescription.”
Reporter, Lord Monbodde.For the Earl of Hopeton, Solicitor-General Dundas.For the other Creditors, Elphinston.Clerk, Colquhoun.
Fol. Dic. v. 4. p. 115. Fac. Col. No 172. p. 269.*** This case having been appealed:
The House of Lords, 21st March 1805, “Ordered and Adjudged, That the appeal be dismissed, and the interlocutors complained of affirmed.”
