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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Macpherson v. Jamieson [1901] ScotLR 39_150 (28 November 1901) URL: http://www.bailii.org/scot/cases/ScotCS/1901/39SLR0150.html Cite as: [1901] ScotLR 39_150, [1901] SLR 39_150 |
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Page: 150↓
[Sheriff of Argyll.
Entries in an account which are struck out by the Sale of Spirits Act 1750 (Tippling Act) do not interrupt the triennial prescription.
The Sale of Spirits Act 1750 (24 Geo. II. c. 40) (Tippling Act), sec. 12, enacts—“That from and after 1st July 1751 no person or persons whatsoever shall be intitled unto or maintain any cause, action, or suit for, or recover either in law or equity any sum or sums of money, debt, or demand whatsoever, for or on account of any spirituous liquors, unless such debt shall have really been and bona fide contracted at one time, to the amount of twenty shillings or upwards.”
Page: 151↓
The Act 1579, c. 83, enacts—“That all actions of debt for … merchants comptes and uther the like debts that are not founded upon written obligationes be persewed within three zeires, utherwise the creditour sall have na action, except he outher preife be writ or be aith of his partie.”
Mrs Margaret Macpherson or Mackay, carrying on business under the former name, grocer and spirit merchant, Oban, brought an action in the Debts Recovery Court there against James Jamieson, roadman, Kilninver, near Oban, concluding for payment of £48, 19s. 5
d., conform to account commencing 4th December 1895 and ending 8th May 1900. The summons in this action was dated June 13, 1901. 1 2 The defender pleaded—(1) Prescription. (2) Tippling Act.
Mrs Macpherson produced an account consisting of a large number of items partly for spirits and partly for provisions. The only entries in this account within three years of the date of the summons were three entries for spirits in 1899, amounting in all to 2s. 7d., and one entry in May 1900—“Spirits 6d.”
On 21st July 1901, the Sheriff-Substitute ( Maclachlan) granted decree for payment of £42, 3s. 1d.
On appeal the Sheriff ( Ferguson) affirmed.
The defender appealed to the Court of Session, and argued that the items in the account which fell under the provisions of the Tippling Act 1751 (quoted supra) were illegal, and could not be looked at judicially for any purpose— Maitland v. Rattray, November 14, 1848. 11 D. 71. If these entries could not be looked at, the account had prescribed.
The respondent argued that the Tippling Act, although it deprived the publican of the right to recover such items by action, did not affect them as an interruption of prescription.
At advising—
In defence, the defender pleads prescription, the Tippling Act, and payment.
It appears to me that the first plea, which ought to have been considered and either sustained or repelled, was that of prescription. The Sheriffs, however, did not take that course, but held that the plea was barred by the defender's writ, and allowed a proof at large.
Now, on turning to the account libelled on, it appears that the four entries subsequent to April or May 1898 are all for small quantities of spirits under the amount of 20s., and the pursuer did not dispute that the Tippling Act (24 Geo. II. cap. 40), applied to these charges. Now, in the case of Maitland v. Rattray, 11 D. 71, it was decided that the Tippling Act did not merely cut off the right of action for such furnishings, but rendered them positively illegal. On the authority of that case, accordingly, I think that these entries must be struck out of the account, and the account regarded as if the entries had never been in it. If that be so, then the last entry in the account falls beyond the three years of prescription, and the account is prescribed.
I am therefore of opinion that the plea of prescription ought to have been sustained.
[ His Lordship then dealt with the question whether the constitution and restingowing of the debt was proved by the writ of the defender].
I am of opinion, therefore, that we should recal the interlocutors appealed from, sustain the plea of prescription stated for the defender, and find that the constitution and resting-owing of the debt can only be proved by the writ or oath of the defender; find that the pursuer has failed to prove the constitution and restingowing of the debt by such writ; and therefore assoilzie the defender.
The
The Court pronounced an interlocutor in accordance with the last paragraph of Lord Adam's opinion.
Counsel for the Pursuer and Respondent— D. Anderson. Agents— Morton, Smart, & Macdonald, W.S.
Counsel for the Defender and Appellant— W. Mitchell. Agent— James F. Mackay, W.S.