Petition 1766

November 29. 1766. Unto the 2 9. 1 7 6 U n U t o h e T L The L O R D S o f C O U N C I L and S E S S IO N, T H EP E T I TI O N O F Oh R L D S h f C L T T now o f Kirkconel Son and Heir of the late Jam es M ax­ w ell of Kirkconel and of Mrs Mary Riddle, Relict of the said deceased Jam es Maxwel, • Humbly Sheweth, T H A T the petitioners, as representing the late James. Maxwell of Kirkconnell, are pursued at the instance of John Maxwell writer in Dumfries, brother and executor of the late William Maxwell of Carswadda, for pay­ ment of L. 38 Sterling, contained in a bill, dated as far back as the 27th February 1734, drawn by the said William Max­ well upon and accepted by the said late James Maxwell, pay­ able the first of May thereafter, with interest from the term of payment. This action came in course before the Lord Auchinleck Or­ dinary, when, in abs ence of the petitioner’s procurator, decreet was, was, of this date, pronounced against them in terms of the libel. On advising representation and answers, his Lordship, of this date, pronounced this other interlocutor: “ The Lord Ordinary hav ing again consid ered this representation, with the answers, and Mr Andrew Hunter’s letter, adheres to the former interlocutor; and refuses the desire of the repre­ sentation, superseding extract till the 15th of November.” On advising a second representation for the petitioners, his Lordship, of this date, pronounced the following interlocutor. "The Lord Ordinary having considered this representation, with the former proceedings in this cause; and particularly, that the bill in question is not cut off by prescription; that there is no document of its having been paid; and that the taciturnity is well accounted for from the creditors books, which shows, that the contents of it were by him consider­ ed not to be his own, but to belong to the proprietor of the saofKln,upon which estate he was factor, and which is confirmed by Mr Hunter’s letter in the 17 4 7; ad­ heres to the former interlocutor, and refuses the desire of the representation.” These interlocutors the petitioners must humbly submit to the review of the court, in hopes that they will obtain an al- teration of the Lord Ordinary s judgment, and an absolvitor from this action. In the entry, it merits observation, that tho’ the bill now pursued for is drawn on the 27th February 1734, and made payable on the first of May thereafter; yet that the present action was not called in this court till the 1 1 th Ju ly 1 7 6 5; s o that no les s than 3 1 years 2 months and 1 1 days, have inter- veened between the time that this bill became payable, and the call- ing o f this action before your Lordships. Add to this, that the bill itself never was protested nor registrate; no document, no diligence whatever done, or demand made upon it during this long interval. Of Of late, many attempts have been made to have it found that bills still remained actionable, tho they had lien over for many years, without any legal document having been taken upon them. But as far as the petitioners have been able to discover this is the full instance that has yet occurred, where payment has been insi sted for, of a bill which has been allow- ed to sleep (if one may be allowed the expressio n) for above31 years. I n a l l t h e commercial countries known to us, bills are sub- ject to a very short prescription: And indeed, for very obvious reasons; first, As they are intended for dispatch, and as the medium of trade; and, next, Because they are freed from all those checks which are s o necessary both to prevent and de- test forgeries: Thus, in France, they prescribe in five, and in England they are limited to si x years. Accordingly our le- gislature, when they first introduced them into this country and gave them the aid and sanction of the law, intended that they should be regulated “ conform to the customs of other parts;" it is no wonder then, that your Lordships have always been in use to refuse action upon bills, when they were allowed to lie over for any considerable tract of time. T h e pursuer, in his argument before the Lord Ordinary, was pleased to observe, “ That the leidges, in their transactions, have been in use to rely on bills as permanent securities for money; and, when that is the case, it is impossible they can be limited in their duration to less than forty years. And again, “ That Sir George Mackenzie, in his observations upon the act 9th parliament 1699, says, That the parlia- ment expressly refused to bring bills of exchange under vicennial prescription; and that therefore no other pre- scription known in the law of Scotland can take place a gainst them, except the long prescription of forty years. I f these conclusions, drawn by th e pursuer, are well found­ ed in law, not only have the writers on our law been all alongmiseading misleading the liedges and practitioners; but it would appear, with great submission, that this court has for many years past been in use of determining all such questions in direct opposi- t ion to the known and established law of the land. But so far is this from having been the case, that, tho’ many questions of this nature have been of late years warmly agitated, yet in none of them, as far as the petitioners have heard, has the court found, that bills were to be regulated by the long prescription of forty years. That the petitioners may not appear to speak without some authority, they must here beg leave to trouble your Lord- ships with the opinions of some of our lawyers who have at different periods treated this subject. Lord Stair, book 4. tit. 42. § 6. says, “ Such bills used not to be kept for any considerable time; and if they were so kept, they would not be probative, and because it is the general custom of nations, which particular statutes cannot remedy.” A- gain, Lo rd Bankton, vol. 1. p. 367. § 3 1. (after quoting and approving of the decision of the 1 1 th February 1747, Gar­ den against Rig, where action had been refused on a bill that had lain over for 28 years), has these words: “ But it is probable, that a much shorter time will be found suffi- cient, when such cafe occurs.” Mr E rskine too, in his late Institute, p. 346. § 1 1. says, Certain obligations are lost by the lapse of less than 40 years, without the aid of statute, where the nature of the obligation and the circumstances of parties ju stified it. Thus action has been refused on bills (because bills are not in­ tended for lasting securities) upon 24 or 25 years taciturnity in the creditor, unless the granter be alive, and the sub- sistance of the debt offered to be proved by his oath.” From these authorities it is evident, that a shorter prescri­ ption than that of 40 years was thought expedient for bills. Accordingly, by a track of uniform decisions, the prescription has of late years been limited to 20 years, from an analogy to to the statute anent holograph writs. The firs t case that shall be noticed is that of Lady Forrester against Lord E l- phingston, 13th November I742. H e r e Lord Forrester the drawer was dead; but Lord Elphingston the accepter was a- live; and an action was brought by Lady Forrester against his Lordsh ip for payment of a bill accepted by him in the 17 16; and Mr Hume, who collects this decision, says, “ The defence was the vicennial prescription; whereupon the Lords ordained both parties to give in memorials touching the state of the law of foreign mercantile nations anent the endurance of bills at the time of the act 16 8 1.” It would appear that the pursuer was convinced, from these memorials that the vicennial prescription ought to take place; for Mr Hume adds: “ The pursuer suspect in g the validity of the defence, referred resting owing to Lord Elphingston s oath; after which, his Lordship having deponed circumstantially, the Lords found, That his oath did not prove resting ow­ ing; so he was assoilzied.”.T he next case is that of Wallace against Lees, 31st January 1749, where an action having been brought, in the 1747. payment of two bills, the one granted in the 1722, and the other in 1724, “ the Lords found, That the bills having lain over so long, and the granter being dead, there lay no action upon them.” Moncrief of Tippermaloch against Sir William Moncrief, the 13th of December 175 1; it was found by the Lord Ordi- nary, That a bill on demand, granted the 1 6th October 17 19, having been sued for in the 1746, was not probative after such a lapse of time without any demand made upon i t; and therefore that no action was competent on the same. This interlocutor was afterwards adhered to by the whole Lords. Lookup against Crombie and the creditors of Archibald Crombie, 20th February 1754; an indorsee to two bills 30 years old having craved to be ranked in a sale of the accept­ er’s estate for the films therein contained; it was object e d, That That the bills having lain over for about 30 years, without any legal demand having been made, no action could now be sustained upon them. And the Lords found, That no ac­ tion could be sustained upon the bills. In the case, Wallace and others against Murray, 19th Ja­ nuary 1759, the daughter of an accepter of a bill, which had lain over for 30 years, having objected, That it could not be the title of confirmation, the Commissary sustained the ob­ jection; and the Lords refused a bill of advocation, and re­ mitted s i m p l i c i t e r. It is true, that in the case, Fraser against Cameron, 22d February 1759, action was sustained on a bill, though twenty years had elapsed from its date. But then it is material to observe, that twenty years compleat had not elapsed from the term of payment. Now, as the prescription of bits can on­ ly run from the term of payment, this demonstratively shows, that it was the opinion o f the court, that bills prescribed in twenty years. The last case with which the petitioners shall trouble your Lordships is that of Stewart against Houston, 15th Ju ly 17 6 0, where Houston was, in the 1755, charged for pay­ ment of a bill for L. 15, accepted by him on the 5th March 1728. O f this he obtained a suspension: But having died before it was discussed, it was transferred against his represen- tatives; and the objection was, That the bill was not a le­ gal document, as it had lain over 27 years. The Lords found, That no action lay upon the bill, and suspended the letters s i m p l i c i t e r. No doubt several other cases similar to these have been de­ termined by the court on the same principles since the year 1760, tho’ they have not as yet been printed and published: But notwithstanding that both the principles and practice of the court appear to be so extremely clear in the petitioners favour, yet would they think it greatly beneath them to avail themselves of any legal defence, if they could, in the smallest degree, ' be be persuaded that the pursuer’s plea had the least foundation in equity; for, whatever accident may have prevented this bill from having been retired, the petitioners have all the rea- son in the world to be persuaded that it has long since been paid.... ' What induces them to be of this opinion, is. That, when Mr Maxwell of Kirkconnell, the petitioner’s grandfather, and father of the accepter of the bill, intended to settle his estate upon his son about the 1738 or 1739. a few years after the date of this bill, he made out a date of his affairs holograph of himself: By the very first article of which, it appears that he paid this very sum to the creditor in the bill. The title of this state is in the following words: “ The debts of the estate of Kirkconnell were in my time, and manyofthew contracting, L. 1338 Sterling; of which sum, before I settled the fee of my fortune upon my son, paid to Carswadda L. 38 Sterling:" Which is the precise sum in the bill now pur- sued for, and Carswadda was the creditor in the bill. The state itself is herewith produced, which likewise strongly corroborates what was declared on death-bed by the late Kirkconnell, the accepter of the bill, very soon after it was for the first time hinted that this bill remained unpaid, • viz. That the sum now pursued for was really and truly a debt of old Kirkconnell his father, and was extinguished by him, notwithstanding that the bill was accepted by his son. The pur- suer was indeed pleased to say, that the alledged declaration of the late Kirkconnell, when on death-bed, was of no moment; besides, that it was averred without any sort of evidence. But if your Lordships have any doubt of this circumstance, the petitioners are willing to undertake a proof of the fact. It at least affords the defender a ground to plead the defence in law before stated before the Lord Ordinary; and will not now be denied that the creditor in the bill, however much he might endeavour to preserve the character of a man of s ome credit during his life, was always in very labouring circum-stances, stances, as is evident from the composition that was accepted of by his creditors, from this very pursuer, after his death. In these circumstances, can your Lordships believe that the sum now claimed would have been allowed to lie over, without any requisition whatever, for more than thirty-one years, had it still remained unpaid? To combat all these arguments, founded not only in law and practice, but even on the strongest preemption of payment, it is said for the pursuer, That the creditor in the bill was fac- tor on the estate of Kelton, belonging to Lady Loggan; and that the sum in this bill was a part of the rents of this estate, and was therefore allowed by the factor to remain in the debtors hands, till he should have an opportunity of settling h is accompts with his constituent; on which occasion, should a balance arise against the factor, this sum would answer as so much cash or ready money towards extinguishing of this claim. In order to support this averment, which, ex facie, is evi­ dently more plausible than solid, there are produced, 1mo, What is called the factor’s accompt-book, with regard to his intromissions on the estate of Kelton. 2do, A discharge of a state of accompts between this factor and the proprietor of Kelton, with regard to these intromissions. And, 3tio, A letter, dated 1 1 th July 1747, wrote by Andrew Hunter writer in Edinburgh, doer for Lady Loggan, addressed to the credi­ tor in the bill, who, as has been already observed, was factor on the estate of Kelton. But in truth, this is no more than a story of the pursuer’s own invention, affirmed without any sort of authority; for these vouchers do by no means s upport the doctrine which is thereby endeavoured to be estab lished: For, as to the accompt- book, nothing more appears there, but that Carswadda has marked that he had lent a sum to Kirkconnell; but that sum does not correspond with the sum in the bill. It seems some- what extraordinary that Carswadda should have been, upon the 27th 27th of February 1734, collecting rents from a number of tenants at Kelton, and the same day lending money at Dum- fries, where the bill pursued for is dated: The distance be- tween which two places is about seventeen miles. And, after all, What can this book prove? it cannot go farther than the bill; for it would not prove the debt itself. The defender does not say, no such debt existed; his plea is, that, from long taciturnity, and other circumstances, payment ought to be presumed. As to the second article, being what is called a discharge of a state of accompts, &c. It is true this bill is there marked as being due; but no inference can be drawn from it; For this discharge, as it is called, is altogether an imperfect scroll, incompleat and unintelligible; and without date, docket, or subscription; made out by no body knows who, and cer- tainly can never prove any thing against the petitioners. As to the last thing mentioned, viz. Mr. Hunter's letter in the 1747. The paragraph founded on by the pursuer is in the following words: "As for that money lent to Kirkconnell, &c. I will not yet give you any orders anent it; but shall notice after this, if any adjudications be passing against Kirkconnell, and write you." Mr Hunter, it seems, was doer for the proprietor of Kelton, and this letter was wrote in answer to one from the factor; so that, as it has been here founded on, it would have been but fair in the pursuer to have produced the letter to Mr Hunter, which gave rise to it; how- ever, taking it as it stands, the pursuer only endeavors there- by to show, that this debt did exist in the year 1747, above nineteen years ago. But, in the first place, the force of this letter is fully taken off by the holograph state made out by old Kirkconnell already mentioned, which bears this sum to have been paid long be- fore the year 1747; so that it is evident, either that the factor had forgot his having received payment of this bill, or, what is more probable, this letter must refer to some thing else. But But indeed this tale about the rents of Kelton appears evi­ dently to fe lo d e s e; for how does this intention of allowing makers to lie over, and watching till some other adjudications might be led against the estate of Kirkconnell, correspond with another part of the pursuer’s story, viz. That the sum in the bill was by the factor allowed to lie over, as a ready money fund, as s o much stock in the bank, and so forth, ready on demand to ex- tinguish. any balance that might arise against the factor at set­ tling his accompts? It is not alledged, that any demand was made on Kirkcon­ nell for this money about the year 1747. On the contrary, the fact is, that it never once was asked till long after the credi- tor’s death, and a very short time before K irkconnell’s death, which only happened within these four years. Why then should the creditor be asking advice from Mr Hunter in the 1747, and he writing of adjudications, when payment never was so much as demanded? But taking all these circumstances toge­ ther, can it be supposed that Mr Hunter, or any practitioner about this court, would accept of a bill, that had lain over for about thirty-one years without any document, as so much ready cash at passing the factor of Kelton's accompts? From the other parts of Mr Hunter’s letter, it appears, that he was pressing the factor very hard for money. Now, as he was always in straitened circumstances, why was not this bill, this ready-money fund (as the pursuer calls it) given up by the fac­ tor to stop a gap? Nay, when he was pressed so hard, why did not he even demand the interest of this bill from Kirkconnell, not a farthing of which was ever fought after till a short while before the commencement of this action? But the truth is, that the factor himself never once could dream of the doctrine which is now maintained for him by his executor. He was a man much conversant in business; he was a member of this court: Nay, so intelligent was he, and desirous of being acquainted with what passed here, even after he had retired to the country, that he had all the remar­ kable kable decisions of this court regularly transmitted to him, which he was at the pains to collect. T his being the real matter of fa c t, it is impossible to presu m e t that he could ever think of palming this old fusty bill on the proprietor of Kel- ton, or her agent, in extinction of any part of hi s intromis- sions. Neither can it be presumed, if the bill had been still justly due, that he would not either have renewed it, have demanded the interest, or at least, have taken some document to preserve it from prescription, or a preemption o f payment from so uncommon a taciturnity; for, though it has been said, that this gentleman was in an indifferent state of health some time before his death: Yet it neither is, nor can be alledged, that he was so far deprived of any of his faculties, as to render him in the least degree incapable to transact business. Upon the whole, th ere fo re, it is humbly hoped, that the ‘ particular circumstances in this case, which seem to have de- termined the L ord Ordinary's judgment, will have no weight with your Lordships. So the petitioners shall conclude with ‘ observing, that, if bills can only be cut off by the long pre­ scription of forty years, agreeable to the Lord Ordinary' s jn- t erlocutor, and, are, by this means, to run the same prescription with bonds, there will be a great annual saving to the leidges, and of course, a great decrease of the revenue, arising from the consumpt of stamped paper. May it therefore please your Lordships, to alter the Lord Ordi- nary’s interlocutors; to find, that no action can ly for pay- ment of the hill now pursued on; and therefore to assoilzie the petitioners from this proces s. According to Justice, &c. N R I S a d E, H F w, I 7 / ^ ‘ / h i f in, I)t> 7 (^ q U u fi* i/1% /W- / t ^ v' & c r ' " y- */*ri*a s > ^ • <?«&, • T z '- r r T " '__ <..v ^_/^ V * ^ A« OS*V'U & > A ^ TKtt*. *./ 0 x. i w y ^ + / / > *e <*~ ' 'n // ^ ^ ^ 7A A A *, / t ^.- '- A. * 7 * ^ 7 * r * / « „ *- " ' ' ' " ' i *? 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