Scottish Court of Session Decisions

Subject_1 PRESCRIPTION.
Subject_2 DIVISION X.

Sexennial Prescription.

Trustees for the Creditors of Thomas Renton
v.
Robert Bailie, Merchant in Edinburgh

Date: 4 March 1755
Case No. No 326.

The English statute of limitation holds not where the debtor resided in Scotland.

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Sir Thomas Renton, residing in London, having granted a factory to Mr James Bailie, writer to the signet, for levying the interest of bonded money due to him in Scotland, an account was fitted, London, 6th June 1733, and the docquet, regularly subscribed, acknowledges a balance of L. 108:16:10d. Sterling to be due to Sir Thomas. Of even date, Mr Baillie grants a promissory note to Sir Thomas, referring to the fitted account, and promising to pay to Sir Thomas or order, at his house in London, Martinmas then next, with interest from the date, the said balance of L. 108:16:10d. Sterling. Mr Baillie's factory was continued to him after this clearance, till Sir Thomas died in the year 1740, without a second clearance; and Thomas his son being then young, no demand was made upon Mr Baillie; but after his death, a process was brought against his son Robert Baillie.

To the promissory note it was objected, That being granted in London, and payable in London, it must be regulated by the English statute of limitation; and therefore, that no claim can be sustained upon it after six years.

Two separate answers were made; 1mo, That the present claim, founded upon a promissory note granted for the balance of a fitted account, is not comprehended under the statute of limitation; the words of which are:

“All actions of account and upon the case, all actions of debt grounded upon any lending or contract without specialty, all actions of debt for arrearages of rent, &c.”

And to clear this it was observed, that the statute is strictly interpreted, and is not extended to cases which are not expressed; witness an action of debt for an escape, an action of debt for a fine, an action of debt for a legacy, an action of debt against a trustee, none of which come within the statute. Nay it has been found, that an action of debt on an award is not within the statute; because the statute relates only to an action of debt arising on a contract or lending*. Now, suppose Sir Thomas and Mr Baillie had chosen arbiters to determine their differences, and an award had been given for the same sum that was agreed to be the just balance by the parties themselves, it cannot be thought

* See Bacon's Abridgement, Vol. III. p. 508, 509.

that the balance struck by the parties would fall under the statute, more than if it had been struck by arbiters.

2do, By the 4th and 5th Annæ, cap. 16, it is enacted, that the six years shall not run where the person against whom the claim lies is beyond seas. The reason is, that the legislature intended only to limit certain claims when there was a remedy within the kingdom, in case a debtor refused to do justice; and did not mean to forfeit the debt if the creditor did not follow his debtor in all his wanderings through foreign countries. Now this reason applies to Scotland as well as to parts beyond the sea. It is not doubtful that Scotland would have been comprehended under the exception, had it been thought of; and it is the province of a court of equity to supply the defect.

“The Lords, chiefly for the reason last given, repelled the objection or defence; and found, that the statute of limitation does not apply to this case.”

Sel. Dec. No 85. p. 113.