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Scottish Court of Session Decisions >>
Butter v Gray of Balbrino. [1665] Mor 11183 (17 February 1665)
URL: http://www.bailii.org/scot/cases/ScotCS/1665/Mor2611183-363.html Cite as:
[1665] Mor 11183
Prescription of a bond runs from the term of payment, and not from the date of it.
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James Butter having pursued Gray for payment of a sum of money; he alleged prescription, because 40 years had run from the date of the bond, being the last of December 1624, before any judicial act, or other interruption done thereon. The pursuer replied, That he had cited the defender, upon the first summons upon the 24th of December 1664, which was six days within the 40 years from the date, 2dly, It was much more within the 40 years, from the term of payment of the bond, from which only, and not from the date, prescription runs, quia contra non valentem agere non currit præscriptio. The defender answered, that the citation on the first summons was not sufficient, unless there had been an act of continuation, or some judicial act, within the 40 years; because the act of Parliament bears expressly, if the creditor follow not, and take document within 40 years, the bond shall expire.
The Lords found the reply relevant, and that the citation on the first summons was sufficient, being within 40 years of the term of payment.
