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Scottish Court of Session Decisions >>
Margaret Douglas v John Duke of Argyle. [1736] Mor 11102 (22 July 1736)
URL: http://www.bailii.org/scot/cases/ScotCS/1736/Mor2611102-307.html Cite as:
[1736] Mor 11102
Triennial Prescription of Accounts, Act 1579. c. 83.
Margaret Douglas v. John Duke of Argyle
Date: 22 July 1736 Case No. No 307.
Found in conformity with Ross against Master of Salton, No 286. p. 11089. The triennial prescription runs during the annus deliberandi.
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Anno 1704, Colin Campbell brought a process before the Commissaries of Edinburgh, for cognoscing that he was creditor to the deceased Archibald Duke of Argyle, for four and a half years' wages preceding January 1702, when he left the Duke's service. After advising the proof adduced, the Commissaries decerned for L. 90 Sterling; and Margaret Douglas, as assignee to the decreet, brought an action on the passive titles, for payment of the said sum, against John Duke of Argyle.
Amongst other defences pleaded for the Duke, it was argued; That, supposing a paction of agreement for wages had been proved, which did not appear from the proof adduced, yet, by the act 83, Parl. 6. James VI., Colin Campbell could only have right to fees within three years of the citation before the Commissaries, and consequently was entitled to no more than a year and a half's wages, the libel not being raised till the beginning of December 1704.
Answered for Margaret Douglas; That giving, but not granting, the act should be so construed, as to restrict the fees to three years before the citation; yet that must certainly comprehend all the fees that became due within three years backward; and therefore would carry a year immediately preceding the three, for this plain reason, that the prescription can never debar the servant from payment of that fee which became due within three years of the citation, and consequently must comprehend the fee of one year further back than the three; because a servant cannot pursue for the year's fee till first the service is performed; so that, according to this computation, instead of one year and a half's fee, there will be two and a half due.
2do, It is acknowledged by the defender, that Archibald Duke of Argyle died in October 1703; of course, the year after that, as being the annus deliberandi indulged by law to the defender, to consider whether he would enter heir to his father or not, cannot enter in computo of the three years; because, during that year, he could not be pursued cum effectu, as was found 16th July 1708, Thomson, No 295. p. 11093. Setting then aside this year, the pursuer is entitled to three years and a half fees; so that the remaining dispute is de minimis, de quibus non curat prætor.
The Lords found the process did only interrupt the prescription, as to what fees fell due within three years of the commencement of the process; and found the prescription did run during the annus deliberandi.
