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Scottish Court of Session Decisions >>
Morris v Johnston. [1629] Mor 11228 (21 July 1629)
URL: http://www.bailii.org/scot/cases/ScotCS/1629/Mor2711228-405.html Cite as:
[1629] Mor 11228
What diligence sufficient. - Effect of partial interruption.
Morris v. Johnston
Date: 21 July 1629 Case No. No 405.
Found that a charge of horning and denunciation are sufficient interruption of prescription, although there was no citation before a judge.
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A contract being alleged to be null, because it was alleged more than 40 years since the date thereof, and sincesyne no action intented thereon, and therefore that it was prescribed conform to the 28th act, Parl. James III., the allegeance was repelled because it was registered within that space, within which space also letters of horning were execute against the party, and he denounced to the horn; which registration and horning were sustained to interrupt the said prescription, albeit the registration was only done by consent of the parties procurators, and not by any citation; and albeit no action was intented thereon, nor the party summoned within that space; for the contract registered by consent was found as good as if it had been done by citation of the party, and the horning was also found an interruption without action.
Fol. Dic. v. 2. p. 127. Durie, p. 465.*** Spottiswood reports this case:
1629. July 18.—In an action pursued by David Morris against Mr David Barclay and Christian Johnston, for improving of a contract made between the pursuer's father and the defender's father in anno 1586 as false and feigned; it was excepted, No process, because the pursuer's action was founded upon a contract made 1580, which was prescribed, there being nothing intented 40 years thereafter and more. Replied, That ought to be repelled, in respect the pursuer offers to prove that the prescription was lawfully interrupted by letters of horning direct upon the said contract, whereupon charges and denunciation followed. Duplied, No lawful interruption of prescription without a summons and citation before a judge. The Lords found the charge of horning and denunciation a sufficient interruption.
Spottiswood, (De Præscriptione & Usucapione.) p. 236.*** Auchinleck reports this case:
1629. July 18.—One being alleged to be prescribed, because not pursued within 40 years, it was replied, That within the time of prescription, letters of horning were raised upon the bond, and the party charged therewith; which the Lords sustained as a deed that stays prescription, and more notorious nor taking of a document prescribed by the act of Parliament.
