Scottish Court of Session Decisions

Subject_1 PRESCRIPTION.
Subject_2 DIVISION IV.

Vicennial Prescription of Retours, and of Holograph Writs.

The Earl of Leven
v.
Major Arnot

Date: 28 July 1715
Case No. No 189.

The vicennial prescription of holograph writs is only quoad modum probandi, therefore it is sufficient to prove the verity of the subscription by the defender's oath, and the pursuer is not bound to prove resting owing.

Click here to view a pdf copy of this documet : PDF Copy

The Earl having raised a process against Major Arnot, for payment of L. 120 Sterling, contained in two holograph missives, the Major proponed a defence of prescription, in regard that no process was raised upon them within 20 years; and the pursuer having answered, That the act 1669 having indeed introduced a prescription of such writs, not being pursued within 20 years; yet it also esstablished an exception in these words, Except the pursuer offer to prove by the defender's oath, the verity of the said holograph bonds and missive letters, and subscriptions in count-books; and the pursuer offered to prove in the terms of the said exception, the verity of the said missive letters by the defender's oath. And here the question turning upon the meaning of the said exception, and whether the missives in question be so far prescribed, that action cannot be thereupon sustained, unless the verity of the debt, and that the same is resting owing, unpaid, be proven by the defender's oath? Or if it be sufficient to be proved by his oath, that the said missives are true deeds, holograph and subscribed by the party?

It was alleged for the defender, 1mo, That prescription by its nature permit obligationem, so that unless the pursuer could make it appear, by the defender's oath, that the debt is resting, the action must evanish; for seeing the exception of prescription presupposes the verity of the deed, the meaning of the exception must be, that it prescribes, unless resting owing be proved, &c. 2do, By another clause in that act, it is provided, that merchant's accounts, ministers's stipends, mails and duties, &c. prescribe within five years, unless resting owing be proved by oath; and by the act 1579, servants' fees, merchants' accounts, &c. are declared prescribable in three years under the same exception. So that the verity of the debt, and not of the deed, is to be understood in the exception of the said acts.

Answered for the pursuer, 1mo, That omnis præscriptio non perimit obligationem, for then after running of any prescription, there could be no proof by writ or oath of party, seeing an extinct obligation can afford no action; so that we must distinguish betwixt the long prescription of 40 years, and short ones, quibus modus tantum probandi perimitur. 2do, Before the act 1669, such writs were probative until the long prescription, and must still subsist, except in so far as limited by that act. 3tio, Prescription does not in all cases acknowledge the verity of the obligation, since it may be opponed to a false as well as true obligation. 4to, A correctory law must be explained, according to the genuine meaning of the words, which here mention only the verity of the writ, not the debt. And as to the other clauses in the act, and the act 1579, answered, That these other instances widely differ from this, for they concern debts not constituted by writ, which law presumes the creditor will not lie out of for any considerable time; and therefore a prescription in such cases is justly established, after a certain number of years, with this exception, unless the pursuer prove resting owing, by writ or oath, which is plainly distinct from the present case.

The Lords found it relevant by the defender's oath, to elide the defence of prescription, that the missives are true and holograph, and subscribed by him.

Act. Fleeming. Alt. Hay. Clerk, Mackenzie. Fol. Dic. v. 2. p. 113. Bruce, v. 1. No 133. p. 175.