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Scottish Court of Session Decisions >>
John Hamilton and Company v John Martin. [1795] Mor 11120 (24 January 1795)
URL: http://www.bailii.org/scot/cases/ScotCS/1795/Mor2611120-323.html Cite as:
[1795] Mor 11120
Triennial Prescription of Accounts, Act 1579. c. 83.
John Hamilton and Company v. John Martin
Date: 24 January 1795 Case No. No 323.
Action for the price of goods consigned by one foreign merchant to another, is not cut off by the triennial prescription.
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In 1774, John Hamilton and Company, then merchants in Virginia, consigned to John Martin, then also merchant there, 700 bushels of pease, and 30 barrels of beef, to be sold by him in the West Indies.
Both parties having returned to this country, Hamilton and Company, in 1793, brought an action against Martin, for payment of these articles, who stated in defence, that he had reason to believe, that the debt had been long since settled; and, at any rate, that in consequence of the lapse of the triennial prescription, its subsistence could be only established by his own writ or oath. That the statute 1579, c. 83. extended to every species of open account; July 1731, Crawford against Simson, No 306. p. 11102.; 16th December 1675, Sommerville against the Executors of Muirhead, No 285. p. 11087.; 22d July 1755, Farquharson against King's Advocate, No 313. p. 11108.; and in particular, to cases similar to the present; 15th February 1630, Orr against Duffs, No 279. p. 11083.
The Lord Ordinary sustained the defence.
But on advising a reclaiming petition, and answers, the Court were of opinion, that the chief object of the act 1579, was to prevent the hardship which might arise from losing the old discharged accounts of shopkeepers and other retailers, and that it was not meant to cut off claims arising from considerable mercantile transactions, like the present, which, at the date of the act, were very rare in this country; and further, that it did not extend to actions arising upon the contract of mandate.
The Lords unanimously repelled the defence of the triennial prescription.
Lord Ordinary, Stonefield.Act. Arch. Campbell.Alt. Geo. Fergusson.Clerk, Sinclair.
Fol. Dic. v. 4. p. 105. Fac. Col. No 150. p. 343.
