Scottish Court of Session Decisions

Subject_1 PRESCRIPTION.
Subject_2 DIVISION X.

Sexennial Prescription.

James Russel
v.
James Fairie

Date: 23 May 1792
Case No. No 334.

The sexennial limitation of bills, how tar affected by relative writings during the six years, or afterwards.

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Fairie, on 8th May 1782, granted to the mother of Russel a bill of exchange for L. 92, payable one year after date.

On the bill were marked a variety of partial payments, the latest dated in September 1788. Three of the markings were in Fairie's hand-writing; the last of these, however, was in 1786.

After Mrs Russel's death, there having been many transactions between her and Fairie, a correspondence took place between him and her son. In March 1789, Fairie desired Russel “to send a copy of the bill, and the payments made on the back of it, so that he might settle the balance.” And in July 1789, after the expiration of the six years, he again wrote in similar terms.

At last an action was brought by Russel against Fairie, for the sums appearing to be due, after deduction of the partial payments as marked on the bill.

The defender alleged, That he had made other advances to the full amount, trusting that the creditor would have carefully noted them. At any rate, he contended, that the bill was no longer a probative document, being cut off by the sexennial limitation of 12th Geo. III. cap. 72.

In support of the action, Russel

Pleaded; The purpose of the enactment 1772 was to introduce, with regard to bills, of exchange, &c. the sexennial limitation of England; it being very expedient, that, in commercial transactions, the law should be the same in all parts; of the kingdom. As in England, therefore, any writing, even within the six years, which recognises a bill as a voucher of a subsisting debt, is held to interrupt the currency of the prescription, the same rule ought now to be observed in this country. In particular, the marking of partial payments, in the hand-writing of the debtor, saves from the limitation; Douglas's Reports, p. 656, Whitecomb contra Whiting. And after the lapse of the six years, the most imperfect and general acknowledgment, such as that of an executor giving public notice of his intention to pay what his predecessor owed, has been held sufficient for that purpose; Chancery Reports, p. 385.

Even upon the footing of the shorter prescriptions known in Scotland, the circumstances in this case are more than sufficient to support the claim. It is true, that partial payments, when noted by the creditor, can have no weight. But where this is done by the debtor himself, it amounts to a clear acknowlegment of his obligation; and as the enactment of 1772, allowing the subsistence of the debt to be proved, after the six years, by the writing as well as by the oath of the party, does not say in what form the writing should be, or whether the date of it should be before or after the lapse of the six years; even the markings on the bill would, in this case, be per se sufficient to make room for the statutory exception. But the correspondence, after the expiration of the six years, in which a balance is admitted, and a reference made to the partial payments noted on the bill, for the amount of it, seems to put the question beyond the possibility of doubt.

Answered, In the enactment of 1772, there is no express adoption of the English law, and the rules it lays down are quite inconsistent with any intention of that kind. The sexennial limitation of England is not directed against the bill only as a legal voucher; it is an extinction of the debt itself; insomuch, that it cannot be afterwards proved by the oath of the party, which, however, is authorised with us by the late statute. It would therefore be incompetent, although it were for the evident advantage of the country, to substitute in this respect the law of England in the place of our own. Besides, it is far from being clear that we would derive any advantage from the alteration. Those circumstances particularly, which in England are admitted even after the six years to save from prescription, seem to be altogether inadequate and inconclusive. From thence it would follow, that the obligation to pay the testator's debts, imposed in all testamentary deeds, should revive every claim to which he might have successfully opposed the statutory limitation.

The enactment in question was evidently intended to establish, with regard to bills and other vouchers of the same nature, one of the shorter prescriptions known in Scotland. These are founded on a presumption of payment, which, so far from being removed by such transactions as here occurred within the six years, is held to receive from thence additional force; Erskine, 3. 7. 39. And although extreme cases may be figured, in which the consequences may be thought hardly reconcileable to justice; for example, where, on the day before the lapse of the six years, the debtor marks a payment to the account of the bill, or perhaps of the interest due on it; this cannot derogate from the efficacy of a law, in general wisely calculated for the security of commercial intercourse.

No relative writings, therefore, during the six years, are admitted in practice to remove the prescription, because they are not absolutely incompatible with the legal presumption of payment on which it rests. As to writings after the six years, where they amount to an unqualified admission of a subsisting debt, every attention ought to be paid to them. But those referred to on the other side are not of that nature. They indicate a wish to settle the claim arising from the bill, as well as all other transactions occurring between the parties. But they do not necessarily imply, that a balance was due by the defender, more than by the pursuer; and therefore they cannot, in sound construction, be held as a proof, such as is required by the statute, “by the oath or writing of the party,” that the debt contained in the bill ‘is resting owing;’ 3d February 1784, Scot contra Gray, No 328. p. 11126.; 31st January 1787, Buchan contra the Creditors of Bedlay, No 331. p. 11128.

The Lord Ordinary pronounced this interlocutor:

‘In respect it has been decided by the Court, that receipts for partial payments within the six years do not bar the sexennial prescription of bills, when pleaded against an action brought on the bill after the lapse of the said six years; and also in respect that the defender's missive letters produced by the pursuer in this action, founded on the bill libelled, do not, in terms of the statute, prove the debt as libelled, or that the same is resting owing,’ assoilzies the defender, &c.

A reclaiming petition was preferred, which was followed with answers.

A majority of the Court were of opinion, that the enactment of 1772 was of a similar nature with those introducing the shorter prescriptions of Scotland, and not an adoption of the English law with regard to the limitation of bills, &c.; and that neither the markings in the hand-writing of the defender, nor the relative correspendence within the six years, could save from the currency of prescription.

But the Lords found, ‘That the letter in process, dated 22d July 1789, from the defender to the pursuer, after the sexennial prescription had run, does instruct, that the debt libelled was then resting and owing in part; and therefore repelled the defence of the sexennial prescription.’

A doubt was started by one of the Judges, whether an interruption of the sexennial prescription by writing, was to be considered as a renewal of the voucher, so as to make room for a new course of the same prescription, to be reckoned from the date of the interruption, as was found in the case of the septennial limitation of cautionary engagements, Gordon, No 233. p. 11037.; or whether the operation of the statute being thus completely done away, the bill would subsist asa legal instrument for 40 years, unless, from the circumstances of the case, there arose a presumption of payment. But it was not necessary to determine the point.

Ordinary, Lord Eskgrove. Act. Maconochie Alt. Armstrong. Clerk, Menzies. Fol. Dic. v. 4. p. 103. Fac. Col. No 211. p. 444.