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Scottish Court of Session Decisions >>
The Earl of Marchmont v Mr James Home of Ayton. [1714] Mor 11154 (23 February 1714)
URL: http://www.bailii.org/scot/cases/ScotCS/1714/Mor2611154-354.html Cite as:
[1714] Mor 11154
The Lords refused to sustain prescription of a moveable bond, in respect of the interim minorities of the creditor's nearest of kin, though not confirmed executors to him.
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The Earl of Marchmont having, as executor to Robert Home of Kimmerghame, pursued Mr James Home of Ayton, as representing Alexander Home his predecessor, for payment of a sum contained in a bond granted by him and William Home, merchant in Edinburgh, to Alexander Ritchie, and conveyed to Robert Home of Kimmerghame, grandfather to Robert Home, the pursuer's immediate predecessor; the defender alleged the bond was prescribed; to which the pursuer replied upon interruption by the minorities of the last Robert Home, and of George his father, and by a charge of horning given upon the bond to William Home one of the co-principals therein.
Answered for the defender; 1mo, Minority is not an interruption of prescription, but only deducted from the years of prescription; 2do, The minority of no person is deducted from prescription but such as had right to the subject and so it is, that neither George nor Robert Homes were confirmed executors qua nearest of kin to old Robert, creditor in the bond; 3tio, The charge of horning cannot interrupt the prescription, because the same was not given to Alexander Home the defender's predecessor, but only to William Home the other co-principal, which cannot interrupt the prescription as to Alexander Home, who never knew any thing of such a charge.
Replied for the pursuer; 1mo, It is true that minority is not, in the strictest sense, an interruption that cuts off prescription, so as to make it begin again from the time of the interruption, but only stops the course of prescription during the years of minority, 2do, Seeing minors are just as ready to neglect the establishing titles in their person to their heritable and moveable estate as to do necessary deeds for interrupting of prescription, it imports not whether the pursuer's author's titles were established by confirmation or not; and, as a summons executed by an apparent heir before his service was sustained to interrupt prescription, 24th July 1672, Edington contra Home, Div. 16. h. t., much more must it be interrupted by the apparent heir's minority. 3tio, Though, in order to interrupt the positive prescription founded on the act of Parliament 1617, it be necessary to certiorate the person in whose favours it is running, because there it is his own possession that acquires him the right; yet the prescription of obligations non utendo in virtue of the act 28th, Parl. 5. James III. may be interrupted by taking any document thereupon; and, it cannot be said, that a person who chargeth or pursueth one of several co-principal debtors in a bond, hath not taken a document upon his right, or hath not used it.
