BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
James Buchan v James Robertson-Barclay and Others. [1787] Mor 11128 (31 January 1787)
URL: http://www.bailii.org/scot/cases/ScotCS/1787/Mor2611128-331.html Cite as:
[1787] Mor 11128
James Buchan v. James Robertson-Barclay and Others
Date: 31 January 1787 Case No. No 331.
The sexennial prescription of a bill of exchange not obviated by a relative writing of equal date with the bill itself.
Click here to view a pdf copy of this documet : PDF Copy
A debtor, of James Buchan transmitted to him, in a missive letter, a bill of exchange for the sums which were due. The letter itself imported an acknowledgment of the debt, and particularised the circumstances attending it.
The debtor some time after became publicly bankrupt, and obtained a cessio bonorum; and Mr Buchan, more than six years posterior to the term of payment specified in the bill of exchange, took out a decreet in absence, and thereupon proceeded to adjudge the debtor's lands.
In the ranking which followed, an objection was made by James Robertson Barclay, and the other creditors, to the claim of James Buchan, as having fallen under the sexennial limitation of bills of exchange introduced by act 1772, c. 71. James Buchan
Pleaded; The missive letter which accompanied the bill, as it would be sufficient, independently of any other document, to constitute a debt, must surely be thought to bring the present case within the exception of the statute of 1772, whereby the sums stipulated in a bill of exchange, or promissory note, may, even after the expiration of the six years, be proved to be resting owing by the writing of the debtor.
2dly, The present claim might, if necessary, be confirmed by the oath of the party. This mode of proof having been recognised by the Legislature itself, cannot be taken away by any change in the situation of the debtor, although it may on that account be liable to suspicions, to which the Court will pay more or less regard, according to the circumstances of the case.
Answered; The statute of 1772 being grounded on a, presumption, that the debt vouched by a bill of exchange which has lain over for six years, though once due, has been already paid, its effect cannot be precluded by a writing of the same date with the bill itself.
2 dly, The proposed reference to oath must likewise be inadmissible. Where a debtor has become insolvent, and more especially where, in consequence of his obtaining a cessio bonorum, he can scarcely be considered as personally liable for the debts contracted by him, no acknowledgment of his ought to be of sufficient authority to prejudge his creditors at large. Erskine, book 4. tit 2. §. 10.
The Lord Ordinary sustained the objection. But after advising a reclaiming petition for James Buchan, with answers for James Robertson-Barclay and others,
“The Lords found, that the missive letter produced does not interrupt the sexennial prescription; but that it is still competent to refer the fact of resting owing to the oath of the debtor.”
Lord Ordinary, Ankerville.Act. Maconochie.Alt. C. Hay.Clerk, Home.
Fol. Dic. v. 4. p. 103. Fac. Col. No 303. p. 467.
