Scottish Court of Session Decisions

Subject_1 PRESCRIPTION.
Subject_2 DIVISION I.

Negative Prescription of Forty Years.
Subject_3 SECT. I.

Nature and Effect thereof.

York-Buildings Company
v.
Wauchope

Date: 3 July 1781
Case No. No 18.

The negative prescription cannot be pleaded against a debt by one who has no interest.

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James Wauchope acquired right to an old debt upon the estate of Earl Marischal, which had been ascertained by decree of the commissioners, and declared to be a subsisting charge on the estate, in terms of the act 4th of George I.

The York-Buildings Company, to whom the Marischal estate was sold, transacted this, along with the other debts affecting it, and gave Mr Wauchope, in payment, four of their transferable bonds, amounting to L. 325 Sterling; he, on the other hand, obliging himself to grant the Company a proper conveyance of the debt, upon actual payments being made; but, at the same time, reserving the effect of his diligence and other rights, in case of non-payment.

When the Company came to account in Exchequer for the price of the estate, it was agreed that they should be allowed credit for what sums they had actually paid in transacting the debts affecting it. But, as no direct or sufficient vouchers were produced, to show that the four bonds above mentioned had been paid, the Barons determined, ‘ That they could not give the Company allowance out of the price of the estate, for the sum of L. 375 Sterling, said to be paid to Mr Wauchope.’ They afterwards refused a petition presented by the Company. And these judgments were affirmed by the House of Lords, upon appeal.

In the mean time, the Company had brought an action before the Court of Session, against Mr Wauchope's Representatives, concluding, that they should make up titles, and denude in terms of his obligation; and the defenders not appearing, decree was pronounced in terms of the libel. When, therefore, the question Was finally determined against the Company in the Court of Exchequer and House of Lords, for want of sufficient vouchers of payment, they proceeded, in the view of supplying that defect, to carry the decree of the Court of Session into execution. A suspension, however, was obtained; and, in discussing the reasons, it was

Pleaded for the suspenders; The obligation founded on had fallen by the negative prescription, long before any demand was made in consequence of it; at any rate, as actual payment was the condition of that obligation, nothing but a direct proof of such payment can entitle the chargers to the conveyance they are now insisting for. No such proof, however, has yet been brought, as is evident from the judgments both of the Court of Exchequer and House of Lords. These judgments cannot surely be reversed in the present process; and, although it were competent to do so, it seems absurd that the suspenders should be obliged to grant an assignation acknowledging a payment to have been made, which does not consist with their knowledge, and has not yet been properly instructed.

The suspenders, it is true, have not the bonds to produce; nor have they hitherto attempted to prove the tenor, or asked payment of them, but that they may do or not, as they shall be advised. These bonds may still be recovered; and, were the suspenders to grant the conveyance now demanded of them, which must necessarily proceed upon the narrative of payment, they would for ever be precluded from making any advantage of them.

Answered for the chargers; There are here no termini habiles for pleading the negative prescription. For, 1st, the present demand is founded not merely on an obligation, but on a duty, which every good man owes to his neighbour, and which, therefore, cannot prescribe. Unusquisque præsumitur consentire in id, quod sibi non nocet, et alteri prodest. The suspenders cannot, by any direct action, recover a sixpence of this debt, because the bonds are prescribed many years ago. They can, therefore, lose nothing by the conveyance demanded; while, on the other hand, the chargers, if that conveyance is with-held, must again pay a sum of money, which there is good reason to believe they have already paid, though the evidence of payment is in some sort defective. 2dly, The present demand resembles an action of warrandice. It was not, till lately, that the Barons of Exchequer ultimately disallowed the chargers claim; and the prescription can only run from the date of their judgment.

The obligation then being still in force, the suspenders must produce the bonds in question, or they must grant the conveyance demanded. It is clear, that these bonds have either been paid, or are still outstanding. In the one case, the condition of the obligation has been fulfilled; in the other, a debt remains upon the estate, for which the chargers are entitled to have credit in accounting with the Crown.

Nor are the chargers barred from insisting, by any orders pronounced by the Court of Exchequer upon this matter. The Barons have no jurisdiction as a court of record, except in matters of revenue. They are here settling the price of the Marischal estate, as Commissioners of the Treasury; and although, in that character, they necessarily heard and decided upon the claims of parties, yet they did so, only in their official, not in their judicative capacity. Their opinions could not prevent any of the parties from bringing an action before the Court of Session; and to the judgments of this Court the Barons of Exchequer must give effect, whatever may be their own sentiments; agreeably to the determination of a late case between Captain Elphinston and Mr Haldane of Gleneagles, affirmed by the House of Lords. Indeed, the appeal in the present case was dismissed as incompetent, for this very reason, that the Barons had not given judgment as a court of judicature, but had disallowed the claim as commissioners of the revenue, whose resolves could be altered by the Lords of the Treasury alone.

The Lords ‘ found sufficient presumptive evidence that the four several bonds in question, granted by the York-Buildings Company to John Wauchope, late merchant in Edinburgh, amounting to three hundred and twenty-five pounds Sterling, are satisfied and paid by the York-Buildings Company; that no prejudice can arise to the Representatives of the said James Wauchope from granting the conveyances of the said debt now pursued for, in favour of the York-Buildings Company and their creditors, and of consequence that the defenders have no interest to plead the negative prescription; and, therefore, decerned and ordained them to convey and make over said debt accordingly, but with warrandice from their own fact and deed allenarly.’

Lord Ordinary, Alva. Act. G. B. Hepburn. Alt. M'Laurin. Clerk, Colquhoun. Fac. Col. No 67. 107. *** This case was appealed:

1782. April 22.—The House of Lords Ordered and Adjudged, that the appeal be dismissed, and the interlocutors complained of affirmed, with L. 100 costs.