Scottish Court of Session Decisions

Subject_1 PRESCRIPTION.
Subject_2 DIVISION IX.

Triennial Prescription.
Subject_3 SECT. IV.

Triennial Prescription of Accounts, Act 1579. c. 83.

Jean Mason, Relict of Mr William Thomson, Writer to the Signet,
v.
The Earl of Aberdeen

Date: 29 November 1709
Case No. No 298.

Action upon a writer's accompt found to prescribe quoad modum probandi, notwithstanding his having his client's papers in his hands jure hypothecæ The triennial prescription was found interrupted by a single article contracted within the three years.

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In the action at the instance of Jean Mason, as executrix to Mr William Thomson, against the Earl of Aberdeen, for payment of an accompt for writings, expeding charters, taking infeftments, and such like business done by the defunct for the Earl;

Alleged for the defender; The accompt is prescribed quoad modum probandi, not being pursued within three years of the date of the last article therein.

Replied for the pursuer; Prescription cannot take place; because the writs relative to the accompt were in Mr Thomson's custody at his decease; and by law he had jus hypothecæ, &c. therein, for payment of his accompt; for where a creditor has right to retain a subject belonging to his debtor, he cannot be thought negligent in delaying to sue for payment; nor could he well seek payment of his accompt, till once the writs were called for. So that the very, having of the writs doth interrupt any prescription that can be obtruded against the articles as to the manner of probation.

Duplied for the defender; Writers cannot plead any hypothec from the sole having of an employer's writs, unless they make appear that a debt is resting; hypothecation being but an accessory security. If the mere having of the writs did interrupt the prescription, no person that had been employed as a writer, could ever thereafter be used safely as agent or otherways, in business formerly expede by himself.

The Lords found, That Mr Thomson's having the Earl's papers in his hand jure hypotheeæ, doth not hinder prescription to run; and that therefore the pursuer behoved to prove the compt to be resting owing by the Earl's oath.

But thereafter, December 13. 1709, the pursuer pleaded, That the currency of the accompt was continued by an article of a discharge of a back-bond granted by the Earl to Sir James Elphinston, and drawn by Mr Thomson within three years of commencing the process.

Alleged for the defender; It is not a single item in three years that will make an accompt current, but a closs track of employment; for, when people have occasion but for a single paper once in a year, it is usually paid at delivery, seeing the matter will not furnish out an account; and it may be said that a current accompt, as allusion, requires continued employment and currency, the insensible gain whereof is understood to stop the advancer's craving.

Answered for the pursuer; There is no fixed time known in our law or practice, for the connecting articles in accompts, which happen according as people have occasion to call for things; and it is sufficient for the creditor in an accompt, that he was ordinarily employed by the debtor when he had business.

The Lords found, That the single article of the discharge being subscribed by the Earl, is relevant to continue the currency of the accompt; and were clear that there is no distinction to be made betwixt merchant and writer accompts.

Fol. Dic. v. 2 p. 121. Forbes, p. 356.