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Scottish Court of Session Decisions >>
John Maxwell v James Maxwell of Kirkconnell. [1767] Mor 1645 (21 January 1767)
URL: http://www.bailii.org/scot/cases/ScotCS/1767/Mor0401645-202.html Cite as:
[1767] Mor 1645
Action sustained on a bill which had lain over 31 years. The acceptor was dead.
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In February 1734, James Maxwell of Kirkconnell accepted a bill to William Maxwell of Craswadda for L. 38 Sterling, payable 1st May thereafter. This bill was allowed to lie over, without being protested or registrated, or any diligence done on it, till summer 1765; when an action for payment was brought, at the instance of Craswadda's executor, against James Maxwell, then of Kirkconnell, as representing his father James Maxwell, the acceptor of the foresaid bill. The Lord Ordinary decerned for payment; the defenders reclaimed to the whole Lords.
Pleaded for the defender: In all commercial countries bills are limited by very short prescriptions. In France they prescribe in five, and in England in six years; and although in Scotland there is no express law limiting the endurance of bills to any particular period, yet, from the uniform tract of the decisions of the Court, as well as the opinion of our lawyers, a sort of prescription seems to be established, not indeed fixed to any particular period, the time differing according to circumstances, but considerably within the period which this bill has lain over; Lord Stair, b. 4. tit. 42. § 6.; Lord Bankton, vol. 1. p. 367. § 31.; Erskine, b. 3. tit. 2. § 37.; Lady Forrester contra Lord Elphinston, 13th November 1742; C. Home, p. 346. voce Qualified Oath; Wallace contra Lees, 31st January 1749, No 189. p. 1613.; Moncrieff contra Sir William Moncrieff, No 7. p. 478. and No 31. p. 1428.; Lookup contra Crombie, 20th February 1754, No 193. p. 1635.; Wallace contra Murray, 9th January 1759, No 195. p. 1637.; Stewart contra Houston, 15th July 1760, No 197. p. 1638. All which cases, the defender contended, had been determined by the Court, upon the principle, that bills ought not to be sustained as permanent securities, or action sustained upon them after the lapse of a number of years.
Answered for the pursuer: Bills, by the law of Scotland, are probative writings. They have always been considered as legal vouchers and grounds of debt, and, as such, have been relied on by the lieges; and no prescription is known in the law of Scotland, except what is introduced by positive statute; and, as there is no statute limiting the prescription of bills, it necessarily follows, that no prescription can take place against them, except the general prescription of 40 years: That, in all the cases mentioned by the defenders, in which action had been denied upon bills, although not cut down by the long prescription, various particular circumstances occurred which differenced them from the present case, and rendered it highly presumeable, that these bills had been extinguished by payment, which was not the case in the present question.
‘The Lords adhered to the Lord Ordinary's interlocutor.’
For John Maxwell, Ro. M'Queen.For James Maxwell, William M'Kenzie.
Fac. Col. No 52. p. 92.
