Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PRESCRIPTION.
Subject_3 The sexennial prescription of bills of exchange not obviated by a relative writing of equal date with the bill itself.

John Buchan and Others
v.
James Robertson Barclay

Date: 31 January 1787

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[Faculty Collection, IX. 467; Dictionary, 11,128.]

Monboddo. I should think that the oath of the bankrupt may be taken.

Justice-clerk. “Resting owing” may be proved by oath of party: it would be hard were bankruptcy to take away the mode of proving.

Hailes. [This opinion not delivered because the Court seemed at one.] In the modern practice of Scotland, the presumption is in favour of every person called as a witness. In the last century, indeed, we hear of witnesses omni exceptione majores, because they were noble or because they were rich. If the debts are good, even in the opinion of Mr Robertson, and if he has a reversion, the petitioners will obtain payment from him as from a solvent person: but here we must suppose Mr Robertson to be insolvent; and the question is, Whether an insolvent person may, by his oath, rank his creditors, and give something to one which will be taking something from another? Has the practice of the Court established this?

On the 31st January 1787, “The Lords found the claim competent; found that the missive letter does not interrupt prescription; but found resting owing probable by the oath of the bankrupt; and, as to Margaret Nisbet's debt, remitted to the Ordinary;”—altering the interlocutor of Lord Ankerville, Ordinary.

Act. Allan M'Conochie. Alt. Ch. Hay.