Scottish Court of Session Decisions

Subject_1 BILL OF EXCHANGE.
Subject_2 DIVISION V.

Bills by the lapse of time lose their Privileges.

Andrew Lookup,
v.
John Crombie and the Creditors of Archibald Crombie

Date: 20 February 1754
Case No. No 193.

Found that no action could be sustained on bills which had lain over, without legal demand, for 30 years, and where the original parties were dead.

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Archibald Crombie was debtor to Robert Richardson by two bills; the one dated 4th June 1721, payable 10th February 1722; and the other dated 15th June 1724, payable on demand.

John Crombie, nephew and apparent heir to the said Archibald, brought a sale of his lands, and ranking of his creditors, in terms of the act of Parliament 1695.

In this process, Andrew Lookup, who had right to the above bills by indorsations, compeared, and craved to be ranked for the sums thereby due.

It was objected by John Crombie and the creditors, That the bills having lain over about 30 years, without any legal demand being made, no action could now be sustained upon them.

Answered for Andrew Lookup: That although bills lose their extraordinary privileges in a very short time, yet they do not, by the law of Scotland, cease to be probative writings, or prescribe in less than 40 years; that they do not prescribe in 20 years, appears from the 9th act Parl. 1669, introducing the vicennial prescription of certain writs mentioned in the act, of which bills are none; and Sir George Mackenzie, in his observations on that act, says, “That the Parliament refused to limit bills of exchange to this prescription.” And if so, they can fall under no shorter prescription, and there is no other period of prescription known in our law till that of 40 years; and to deny action on them because of the lapse of time, is, in other words, to find that they are prescribed. In the present case, the reason of their lying so long over, was the bad circumstances of the original debtor and his heirs, who put off the creditors with promises of payment.

Replied for John Crombie and the Creditors: That bills were introduced solely for the sake of commerce, and not to remain as permanent securities: That, by the law of England, and of most trading nations, they are limited to a very short period; and ought to be so with us also, being introduced in imitation of other trading nations; and to sustain action on them after 30 years, which have run since their term of payment, would be opening a door to forgery, as bills are executed with so few solemnities, that in most cases it would be impossible to discover the falsehood. And Lord Stair, L. 4. tit. 42. § 6. observes, “That bills kept up for any considerable time are not probative.”

The Lords found that no action could be sustained on the bills.'

For Andrew Lookup, Bruce. For Jo. Crombie, Geo. Pringle. Clerk, Pringle. Fol. Dic. v. 3. p. 91. Fac. Col. No 100, p. 149.