The triennial prescription found not applicable to a claim of aliment against the father of a bastard child, le having gone abroad.
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In the year 1784, Janet Macmillan bore a natural child to James Maclurg, who immediately went to Jamaica, where he acquired some money and died there in 1796, naming two executors, with directions to pay some small legacies, and remit the remainder of his fortune to Alexander Copland, merchant in Crossmichael, the interest to be annually paid to the testator's mother, and then to be divided equally between a natural child, and the one he had by Janet Macmillan.
This last child Janet Maclurg, had been born in the house of her maternal grandmother Margaret Macdowall, where she continued till the year 1794, when she went to reside with her paternal grandmother.
In 1803, Margaret Macdowall raised an action against her grandaughter Janet Maclurg, and also against Alexander Copland, concluding for payment of L. 10 annually for each of the eleven years, during which she was supported by her.
The triennial prescription was pleaded in defence against this action.
The Lord Ordinary (15th January 1805) sustained the defences, “in respect the pursuer has not condescended upon any relevant or sufficient grounds” for supporting her claim.
This interlocutor was adhered to by the Court (22d May 1806) upon advising a reclaiming petition, with answers.
The pursuer again reclaimed, and
Pleaded: The prescription introduced by the act 1579, includes only such debts as it is usual to pay from time to time; and if the demand of payment has been long delayed without any agreement to that purpose, a suspicion must arise, that the debt has been satisfied. But this presumption can have no place, when from the absence of the party it was almost impossible to receive any payment, or even to make a demand for it. Aliment furnished to a person who has attained the years of majority, is in a very different situation. With him, both a contract may be entered into, and a demand for payment made. But with a minor, no contract can be entered into; and if he has no guardian, and the proper debtor be unknown, or out of the country, the application of the triennial prescription to such a case, would be inexpedient; Davidson against Watson in House of Lords, No. 273. p. 11077.; Paterson against Cochrane, 14th February 1758, No. 275. p. 11080.
Answered: The object of the act introducing the triennial prescription was to prevent the inconvenience of allowing debts not constituted by writing, the discharge of which would be equally unvouched, from being reared up at a distance of time. The terms “menis ordinars and uther the like debts,” include alimentary debts, and the statute introduces a presumption, that after the lapse of three years, the sums due have been discharged; Ersk. B. 3. Tit. 7. § 17.; which can only be removed by the writ or oath of the defender, that the debt is still undischarged; Lady Cairnsfield against Duke of Gordon, February 1714, mentioned in the case of Hamilton against Lady Hamilton, 25th July 1716, No. 303. p. 11100.; Bruce Cumming against Andrew, January 1722, mentioned in the note under No. 303. p. 11100.; Forsyth against Simpson, 15th February 1791, No. 276. p. 11081.
The Court (4th February 1807) “alter the interlocutor reclaimed against, and sustain the pursuer's claim for repetition of the aliment of the defender, during the time she maintained her; remit the cause to the Ordinary to ascertain the amount of this claim; to find the defender liable in expences, and to do otherwise in the cause, as his Lordship shall see cause.”
To which judgment, the Court (19th February 1807) adhered, by refusing a reclaiming petition, without answers.
Lord Ordinary, Cullen.Act. R. Bell.Agent H. Moncrieff, W. S.Alt. Copland.Agent Vans Hatborn, W.S.Clerk, Scott.
Fac. Coll. No. 273. p. 61
