Scottish Court of Session Decisions

Subject_1 PRESCRIPTION.
Subject_2 DIVISION IX.

Triennial Prescription.
Subject_3 SECT. IV.

Triennial Prescription of Accounts, Act 1579. c. 83.

Bruce and Company
v.
Beatt

Date: 10 December 1765
Case No. No 314.

The defence of triennial prescription sustained, although the accounts were attested by an institor, and a decree obtained against him for the amount.

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Lord Elibank, and others, having right by assignation to a lease of the old Theatre in Edinburgh, and the wardrobe and machinery, granted a commission to John Lee to be manager during their pleasure; after which they transferred the lease to James Callendar and David Beatt, under an obligation to relieve them of all claims against the Theatre, on account of any thing done or contracted by Lee, during his management. Bruce became creditor in three accounts of printing for the Theatre, during Lee's management. For the first of these accounts Lee granted his bill, and attested it as just, after the period of the triennial prescription. The other accounts bore attestations without date; and decree was recovered against Lee for the whole. Action being brought for payment of these accounts against David Beatt, as coming in place of the Gentlemen proprietors of the lease, he pleaded, first, That neither he, nor his authors, were liable for the debts contracted by Lee, as there was a clause in the commission granted by the proprietors to Lee, declaring them to be nowise liable for any debts contracted by him as their manager, in carrying on the entertainments of the house. But this defence the Lords set aside, upon this ground, that a constituent must always be liable for the debts of his institor, unless the clause which declares him free from that obligation is made public. Beatt pleaded next, That the accounts were cut off by the triennial prescription. Urged for the pursuer, That, as the writing or oath of party takes off the presumption of payment, and as the oath is probative at whatever time it is emitted, so there is no ground, either from reason or the statute, for restricting the mean of proof by writing to three years; the attestations, therefore, whether with dates or without them, must save the accounts from prescription; and, independently of them, the decree against Lee, the institor, will be effectual against his constituents. Answered, It is of no consequence, whether the attestations are within the three years or afterwards, as the statute requires the writ or oath of the party; neither of which there is in this case. An institor, or servant employed to manage any business, cannot subject his master or employer, by an oath upon reference, or an attestation in writing; nor can a decree against the institor, for the same reason, interrupt the prescription in favour of the master. Besides, the fact here was, that Lee was removed from the management before those accounts were attested.—The Lords sustained the defence of the triennial prescription.

Fol. Dic. v. 4. p. 108. Fac. Col.

*** This case is No 10. p. 4056. voce Factor.