Triennial Prescription of Accounts, Act 1579. c. 83.
Colin and Duncan Campbells v. John Macneil
Date: 18 January 1799 Case No. No 324.
A citation, where the witnesses subscribing the execution were not present, found insufficient to interrupt the triennial prescription, although it was admitted by the defender, that he received a copy of the summons from the messenger.
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Alexander Maccorquodale had been much employed by John Macneil as a messenger, and his estate having been sequestrated, it appeared to Colin and Duncan Campbells, the trustees on it, that a balance of an account was due by Mr Macneil to the bankrupt.
The last article in the account was dated 30th October 1788. About the middle of October 1791, one of the Trustees wrote to Mr Macneil, that a summons for payment of the balance was to be immediately executed against him to interrupt the triennial prescription. This was accordingly done on the 19th of that month.
The action came before the Sheriff of Argyle, and the defender proponed improbation against the execution of the summons, in respect that the witnesses subscribing it were not present when the copy of the summons was delivered to him by the messenger.
The pursuers, while they admitted the fact stated by the defender, contended, that the citation was nevertheless sufficient to interrupt prescription. And the Sheriff, after a good deal of procedure, at last “appointed the defender to state his peremptory defences.”
Mr Macneil complained of this interlocutor by advocation; and
Pleaded; It is unnecessary to enter into the merits of the question, as the citation cannot bar the triennial prescription. Both the statute 1686, c. 4. and the act of sederunt, 28th June 1704, require, under the sanction of nullity, that citations shall be subscribed by ‘the executor and witnesses.’ But the persons called witnesses in the present execution have no title to that character. To sustain the citation, therefore, would not only be an infringement of the statute, but lead to a criminal laxity in judicial procedure. Nor does it make any difference, that the object of the citation was to interrupt prescription. It follows from 1686, c. 4. taken in conjunction with 1681, c. 5. that the legislature meant that executions of citations used for that purpose should, like every other, be subscribed by the witnesses. And although in a few cases such citations have been sustained, notwithstanding some trifling informalities, the present objection is not of that description; Pres. Falc. 1st February 1684, Anderson, No 83. p. 2857.; Reid against Ker, Div. 15. h. t.; 2d March 1790, Baillie against Doig, Ibidem.
Answered; The sole object of citation is to notify the action to the defender, and accordingly the essential part of it is the delivery of a copy of the summons. That object was here fully attained, as the defender admits his having received not only the copy of the summons, but also a letter from one of the pursuers, notifying the step which was to be taken. The act 1686 does not apply; it merely requires the subscription of the witnesses, and ex facie the execution is unexceptionable. Supposing, however, that the statute were applicable, it is not more strongly expressed than the certification in a variety of enactments regulating the solemnities in the execution of deeds, yet in practice their omission is allowed in many cases to be supplied by the party's acknowledging his subscription.
At all events, although the citation could not oblige the defender to appear in Court, it is sufficient to bar him from pleading the triennial prescription; it being fully established, that where the essential parts of a citation have taken place, it is to be held a good interruption, although liable to objection in point of form; Stair b. 2, tit. 12. § 26.; Ersk. b. 3. tit. 7. § 40.; Div. 15. h. t. 2d February 1705, Wilson against Innes, Div. 17. h. t.; 30th July 1761, Camerons against Macdonald, Ibidem.
The Lord Ordinary “advocated the cause, and found that the pursuers must make a general reference to the defender's oath, as well as to the subsistence as the constitution of the debt.”
On advising a reclaiming petition for the pursuers with answers, and a minute for the defender, with answers for the pursuers, two of the Judges were for repelling the defender's preliminary defence, on the ground, that any citation is sufficient to interrupt prescription which affords notification of the action, and has the effect of bringing the party into Court. But the Lords, by a great majority, “adhered.”
Lord Ordinary, Armadale.Act. Solicitor-General Blair, Fletcher.Alt. Connel.Clerk, Sinclair.
Fac. Col. No 100. p. 235.
