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Andrew Brown of Braid, and his Curators, v John Brodie Coachman, [1709] Mor 11150 (26 January 1709)
URL: http://www.bailii.org/scot/cases/ScotCS/1709/Mor2611150-352.html Cite as:
[1709] Mor 11150
Andrew Brown of Braid, and his Curators, v. John Brodie Coachman,
Date: 26 January 1709 Case No. No 352.
Prescription of a brewers accompt of ale, as to the manner of proof by witnesses, found to run against minors as well as others.
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In the action at the instance of Braid, and his Curators, against John Brodie, for payment of an accompt of ale furnished to the defender, by the pursuer's father, extending to L. 360 Scots; the said accompt was found prescribed quoad modum probandi, by the act 83d Parliament 6th James VI. notwithstanding the pursuer's minority; in respect, the said law doth not except minors, as they are excepted from some other short prescriptions; and minors have not that prejudice by the short prescription, which cuts off the manner of probation only, as by the long prescription which funditus extinguisheth the debt.
Fol. Dic. v. 2. p. 123. Forbes, p. 311.*** Fountainhall reports this case:
1709. January 27.—John Brodie is pursued by Brown of Braid, for an account of ale furnished to him many years ago. Alleged, It is prescribed, quoad modum probandi by the 83d act 1579, not being pursued within three years after the furnishing. Answered, This Braid was minor all the time, and it is an uncontroverted principle, that prescription runs not against minors. Replied, That minority can take no place here, not being excepted in the act, and seems to be de industria omitted, being expressly mentioned in the preceding acts of that same Parliament anent prescription of spuilzie; and Sir George M'Kenzie in his Observations on these acts, tells us, that in merchant-accounts, minority is not considered, for it is not a prescription of the debt, but only of the manner, that it shall not be proved by witnesses, but only scripto vel juramento, seeing it is presumable, that such accounts are not suffered to lie over above three years; and it was so found in a parallel case betwixt the Marquis of Douglas and the Earl of Forfar, (see Appendix.) Duplied, Minority needs not be excepted, because it is a defence arising from the common law, and so inest de jure, unless it be expressly discharged. The Lords found minority took not place here, and so the account was prescribed quoad modum probandi, and could now be only proved by his writ or oath.
