Scottish Court of Session Decisions

The late Donald M'Keich, brother of the defenders Catherine and, Janet M'Keich, was a journeyman joiner, and was resident for some years at Portree in Skye, exercising his trade there and in the neighbourhood. He lodged and boarded in the house of the pursuer Fraser, who kept a provision shop or store. In May, 1835, M'Keich was seized with palsy, and after remaining some time at Portree was removed to Callander where he died in April, 1836; Laving been, subsequent to his illness taken charge of by his sisters, one of whom came for him to Portree. In December of that year, Fraser raised action against Catharine and Janet M'Keich, as representing the deceased, for payment of the sum of £50, 16s., being the alleged balance of an account for board and lodging, and furnishings made by Fraser on behalf of M'Keich, commencing 2d June, 1831, and ending 21st September, 1835. The two first articles of the account libelled on were as follows; ¹—

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¹ The other articles of the account consisted chiefly of various quantities of meal, milk, potatoes, &c.

Oct. 18.—To board and lodging from 2d June, 1831, to this date, seventy-two weeks, at 7s. per week, £25 4 0

1833.—To lodgings for your apprentice, forty-three weeks, at 3s. 6d. per week, … 7 10 6

In defence it was pleaded, inter alia, that the two first and principal articles of the account, being alimentary, were cut off by the triennial prescription.

The Lord Ordinary pronounced the following interlocutor, adding the subjoined note: ^*—“Repels the defence of prescription maintained as to

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* “The Lord Ordinary is inclined to think that the rule as to the separate prescription of each year's (or term's) rent or wages, or each annual charge or pension, as Mr Erskine terms it, for aliment, has no proper application to a case like the present, where the bargain (as offered to be proved) was for a weekly payment only, and could therefore raise no presumption of an annual or termly settlement. The defenders do not maintain that each week's board and lodging should run a separate course of prescription, and it does not seem to be disputed that the contract (if it ever existed) was one renewed from week to week; never embracing or contemplating any longer course of time, and having no apparent relation therefore to the lapse of twelve calendar months, or the arrival of any of the legal terms. The aliments referred to by Mr Erskine are placed by him in the same category with house rents and servants' wages, and seem therefore to have been meant of those permanent contracts for board and maintenance which have an endurance of not less than a year, and either expressly stipulate or imply an annual or termly settlement. But here the parties were never bound to each other for more than a week, and if the plea of prescription would not have been available if they had parted at the end of the first week, it is not easy to see how it can be sustained as against a claim for what is said to be owing in consequence of a series of renewed contracts for many successive weeks.

“But in rejecting this defence of prescription, the Lord Ordinary has been chiefly moved by the consideration, that it seems substantially admitted that the deceased fell into a state of utter and final incapacity before three years had elapsed from the date of this furnishing of board and lodgings; considering it as a detached article of the account, and liable as such to a separate course of prescription. The, board is averred and offered to be proved to have been furnished till the 18th October, 1832, and it is admitted that in May, 1835, the party was struck with palsy, so as to be quite incapable of speaking from that day till the period of his death in April of the following year, having been for the greater part of the interval under the exclusive care of the defenders. It is alleged, indeed, in a vague and general way, that after September, 1835, he partially recovered the use of his senses, but it is not alleged that ho ever transacted, or was fit to transact business, or could communicate any meaning he had, otherwise than by signs. The Lord Ordinary is therefore of opinion that it may be held that he was in no condition to settle accounts with the pursuer (or any other person) after May, 1835; and, indeed, while it is admitted that for some months after the seizure he was entirely without understanding, there is not only no averment that the pursuer was ever in his presence after that seizure, but it is expressly averred, that when sent for by one of the defenders to see him before his removal to Callander, he (the pursuer) refused to come; and that the deceased was consequently removed to the house of the defenders, where he died without ever seeing the pursuer. Now, if the prescription had not run as to this charge for board and lodging when the deceased fell into this state of helplessness, and was put into the custody of the defenders themselves, it seems that it cannot now be maintained, the presumption of payment on which that defence is founded being excluded by the circumstances of the case. Tile defenders admitted at the debate that the whole sum charged in this article must be held as one individual debt; and, indeed, as the incapacity came on in less than three years after the elapse of a single annual period subsequent to the commencement of the account in June, 1832, there is evidently no room for distinction.”

the two first articles of the account libelled, and before farther answer, appoints the cause to be enrolled, that parties may state in what way they propose that the disputed facts of the case shall be instructed.”

The defenders reclaimed, and contended that the view in the Lord Ordinary's note as to the rule of the separate prescription of each year's charge for board and lodging or “aliment” not applying to such a case as the present was new and without authority; that 7s. per week was evidently the rate of payment, and there was no foundation in fact for the idea that a settlement was to take place each week; that even supposing there had been a contract for a weekly payment only, the statutory prescription would equally apply; that during three years prior to the death of the party, it was in the pursuer's power to have brought an action for the articles in question, and the statutory presumption of payment within that period must be given effect to, otherwise the law of prescription would be unsettled; that there was no ground for holding the party as legally dead when he was struck with palsy, as the mental faculties might be retained entire though the body was palsied; and that outlawry, which was a kind of civil death, had been held insufficient to elide prescription.

The pursuer in answer referred to the Lord Ordinary's note, and maintained that the articles in question were to be considered as articles of the same description with the rest of the account, and not to be separated from it; but if there was a continuous account down to 1835, the plea of prescription was elided.