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Douglas v Forsyth. [1669] Mor 11085 (6 February 1669)
URL: http://www.bailii.org/scot/cases/ScotCS/1669/Mor2611085-282.html Cite as:
[1669] Mor 11085
Triennial Prescription of Accounts, Act 1579. c. 83.
Douglas v. Forsyth
Date: 6 February 1669 Case No. No 282.
A merchant-account being current, and not intermitted one whole year, prescription begins not to run against the account of the first year, till after all the years curient.
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Anna Douglas, as executrix to Anthony Roswall, pursuing James Forsyth, as conjunct debtor with Colonel Ker to her husband in two bonds, the one of 2000, and the other of 3000 merks; as likewise in a third bond of 4000 merks, which was deposited blank in the sum and filled up by Roswall himself, having got the same vis et modis; and besides these bonds pursuing upon a merchant-account, extending to near L. 500 Sterling, and having proved the delivery of the goods either to Colonel Ker, Forsyth, or their order; the Lords did find as follows; First, That the third bond being filled up, as said is, by Roswall himself, after the date of the whole account of L. 500 Sterling, he could never crave any more than that sum as due by that account; and in respect that bond was filled up by Roswall himself, they did decern Forsyth to be free of all annualrent until this time, that he had proved delivery of merchant goods contained in the account. 2do, They found, that a merchant-count being current for many years, and every year there being some of the goods and ware delivered, so that there was no interruption for a whole year; that, as to the first year, albeit there was no pursuit conform to the act of Parliament within three years, it did not prescribe. This seems to be against the act of Parliament, bearing no such exception. 3tio, They found, that Forsyth was equally bound with Colonel Ker in the whole account, in so far as extended to the bond of 400 merks, and had subscribed the same; albeit there was neither a copartnery produced, and that the articles were distinct and different, some bearing Ker's receipt, and some Forsyth's.
Fol. Dic. v. 2. p. 121. Gosford, MS. No 108. p. 38.
