Scottish Court of Session Decisions

Subject_1 PART I.

PRESCRIPTION.

Poor John Robertson
v.
Janet Robertson

Date: 5 July 1776
Case No. No. 2.

How far an action brought by a person in his own right, will interrupt the negative prescription of he same claim which might have been competent to him in the right of another? See No. 449. p. 11283.

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In 1763, an action was brought by John Robertson against Janet Robertson, as representing her father Donald, who was the eldest son by the first marriage of Paul Robertson of Pittagown, grandfather to both parties, for payment of 1000 merks provided by the marriage-contract of his second wife, the mother of the pursuer, to the heirs male or female of the said marriage The Court (23d July 1766) found the pursuer entitled only to one-third of these thousand merks, as there were also two other children of the marriage.

The pursuer having obtained right to another third of the thousand merks in right of his sister Grizel, by virtue of a discharge and assignation from her, dated on the 13th March 1773, ten years after the action had commenced, enrolled the cause before the Ordinary, to obtain decree to that extent. Prescription having been objected on the part of Janet Robertson, as much more than forty years had elapsed from the 1725, when this sum became payable to Grizel, and the 1773, the date of her discharge and assignation to the pursuer; the Lord Ordinary found, that prescription as to Grizel Robertson's third was not run at the date of citation to this process, 1763, and therefore repelled the defence of prescription.

In a reclaiming petition on the part of Janet, it was pleaded, That the action brought by the pursuer in the 1763, is entirely founded upon the pursuer's own right to the whole thousand merks, as heir-male of the marriage; and he does not in that action claim in right of Grizel, or of Marjory, the other children of the marriage. That, therefore, as no claim was made on the part of Grizel until the 1773, her right was in every respect prescribed. That as she was cut out from making this claim herself, so was the pursuer in her right, as Nemo plus juris in alium transferre potest quam ipse habet. That by the decisions upon the statutes 1469 and 1474, it is established, that interruption by an action brought upon one title, could not avail even the same person, when he afterwards found it necessary to plead upon a different title to the same subject, 29th November 1683, Hume against Hume, No. 420. p. 11241, and 9th December 1735, Blair against Sutherland, No. 438, p. 11270. And as it hath been established by repeated decisions, that citations on blank summonses do not interrupt prescription, because no particular debt or claim is there founded on, so can no summons interrupt the prescription beyond the particular claim or right therein libelled. That even supposing that the pursuer had actually paid Grizel, in 1725, five hundred merks, which she had accepted of in full of legitim, portion natural, or otherwise, yet that a discharge, dated in 1773, being thus granted inter conjunctas personas, could not have the effect of barring prescription forty-eight years after the date of the discharge and contract to which it refers.

Answered: That as the prescription as to Grizel's share was not run in 1763, when the pursuer commenced his action, so as Grizel afterwards, in 1773, made over her right to the pursuer, the claim made by him in her right must draw back to 1763, when he, in fact, stood virtually in the right of his sister Grizel, in consequence of his having paid her 500 merks by her marriage contract in 1725; and as the assignation and discharge in 1773 was only completing and fulfilling what she was bound to do by her marriage-contract in 1725, so the assignation must draw back, and must be considered as if it had been executed at that time. That the interruption of the negative prescription has always been considered as a most favourable plea in our law; thus it has repeatedly been found to be interrupted by a citation, even although informal; Div. 15. Prescription, Thus, also interruptions used by an apparent heir, although not the real creditor, have been found effectual against prescription, provided he were served heir within forty days after their date; 24th July 1672, Edington, No. 459, p. 11292. “But those interruptions also, which are made by one who had only a putative or supposed title, (are effectual against prescription), so that the true creditor afterwards pursuing, though he derived no right from the supposed one, was found entitled to the benefit of the interruption used by him;” Ersk. B. 3. Tit. 7. § 41. That according to the equity of this doctrine, although the respondent had not right to his sister's third, when he brought the action upon the putative title for the whole 1000 merks, yet it must have interrupted the prescription as to Grizel's share, and must therefore now render his claim effectual, having now acquired that right.

The Court (21st February 1776), adhered to the Ordinary's interlocutor, finding the pursuer entitled to two-thirds of the 1000 merks. But upon advising another reclaiming petition and answers, they altered that interlocutor, (July 1776,) and sustained the objection of prescription.

Lord Ordinary, Alva. For John Robertson, Nairn, M'Cormick. For Janet, Elphinston.